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OUTTEN & GOLDEN LLP
Adam T. Klein (AK 3293) Justin M. Swartz (JS 7989) Samuel R. Miller (SM 2511 ) Lewis M. Steel (LS 4463) Ossai Miazad (OM 1127) Rachel M. Bien (RB 6919) Melissa Pierre-Louis (MP 4946) 3 Park Avenue, 29th Floor New York, NY 10016
COMMUNITY SERVICE SOCIETY
Judy Whiting (JW 8665) Paul Keefe (PK 1618) 105 East 22nd Street New York, NY 10010

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Audrey Wiggins* Sarah Crawford* 1401 New York Ave., N Washington, DC 20005
CENTER FOR CONSTITU 1()Jj~rolY~I
Anjana Samant (AS 516 Darius Charney (DC 161 """'-"-';;''';''';';;;;';;';:::'::':':':::''_--.J 666 Broadway 7th Floor New York, NY 10012
INDIAN LEGAL RESOURCE CENTER
Robert T. Coulter* 602 North Ewing Street Helena, MT 59601

COMMUNITY LEGAL SERVICES, INC.
Sharon Dietrich* 1424 Chestnut Street Philadelphia, PA 19102

PUBLIC CITIZEN LITIGATION GROUP
Mike Kirkpatrick* 1600 20th St. NW Washington, DC 20009

LatinoJustice PRLDEF
Richard Bellman (RB 0049) Jacks.on Chin (JC 3494) · 99 Hudson Street, 14th Floor . New York, NY 10013

*pro hac vice application forthcoming

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

EUGENE JOHNSON and EVELYN HOUSER, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
GARY LOCKE, Secretary, United States Department of Commerce,
Defendant.

CLASS ACTION COMPLAINT

Individual and Representative Plaintiffs Eugene Johnson and Evelyn Houser ("Plaintiffs"), individually and on behalf of all others similarly situated, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
SUMMARY OF THE CLAIM 1. Within the last twelve months, the United States Census Bureau ("Census") began hiring more than one million temporary workers to complete the 2010 census. As a precondition of employment, Census requires all job applicants to produce within 30 days the "official court documentation" for any arrest record-regardless of whether a conviction resulted, the nature of the arrest, its relationship to the job, or its temporal scope. Because this employment practice has significant adverse impact upon African Americans, Latinos, and Native Americans, and it is neither job related nor a business necessity, it is unlawful under Title VII of the Civil Rights Act.
PRELIMINARY STATEMENT 2. The United States Constitution requires the federal government to conduct a census of the entire population every ten years. The work conducted by Census forms a cornerstone of our democracy, serving as the basis for determining representation in the House of Representatives, informing the drawing of voting districts, and allocating substantial amounts of federal funding. It is imperative that the work of the Census be done accurately and in a manner that is fair and free of discrimination for all individuals and communities. 3. That imperative must apply consistently not only to the counting work at the core of Census' mission, but also to the way in which Census hires its workforce. .If this hiring were done appropriately, Census would identify the most qualified workers and screen out those who pose a legitimate risk to public safety and the integrity of the census. Unfortunately, that is not the case. 4. All applicants, whether or not they will work with the public, who have an arrest
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record for any offense at any point in their lives-no matter how trivial or disconnected from the requirements of the job-face an arbitrary barrier to employment. Census requires that within 30 days, these particular applicants must produce the "official court documentation" of all arrests to remain eligible for employment. Because of the difficulty, and often impossibility, of obtaining such proof, many people who have never been prosecuted or convicted are deterred or excluded outright from working for Census. This is no small matter, as roughly a quarter of the U.S. adult population has a criminal record, yet over 35% of all arrests nationwide never lead to prosecution or conviction.
5. Census' screening procedure also unfairly deters or excludes many people with old and minor convictions for non-criminal offenses, misdemeanors, and other crimes that do not involve violence or dishonesty, all of which bear no relationship to the fieldwork or desk job for which they applied. In essence, Census requires applicants with an arrest record to provide official documentation even when the underlying conviction is irrelevant to the requirements of the job.
6. Because the arrest and conviction rates of African Americans, Latinos, and Native Americans far exceed those of whites nationwide, Census' use of an arbitrary pre-employment screen has the result of discriminating on the basis of race, ethnicity, color, and national origin. Thus, Plaintiffs bring this class action suit pursuant to Title VII of the Civil Rights Act of 1964.
7. Census jobs, though temporary, are very desirable. This is especially true in 2010, due to historically high unemployment rates, especially in the low-wage labor market, reaching levels exceeding 30%, with corresponding underemployment rates over 20%. These jobs also pay relatively well; for example, Census workers in Philadelphia are paid $17.75 per hour, and throughout the New York City metropolitan area they are paid $18.75 per hour.
8. Plaintiffs seek simple changes to Census' hiring process that not only will reduce 2

its discriminatory effects, but will promote the public interest by expanding Census' hiring base in historically under-counted communities, thereby helping to achieve Defendant's mandated goal of counting all who live in the United States.
CLASS DEFINITION 9. Plaintiffs bring this case as a class action under Federal Rules of Civil Procedure 23(a) and (b)(2), on behalf of the following class: All African American, Latino, and Native American persons who applied for temporary employment with the United States Census Bureau for positions including but not limited to Census Takers (also known as Enumerators), Census Crew Leaders, Recruiting Assistants, and/or Clerks, who were sent a 30-day notice to produce official court documentation or fingerprints, for whom there is no record of conviction (excluding those with charges pending at the time of application), or who are otherwise suitable for employment based on the Census Bureau's criminal background exclusion factors, and who were not hired by the Census Bureau, between the commencement of temporary hiring for the 2010 census and the date ofjudgment in this action ("the Class").
JURISDICTION, VENUE, AND ADMINISTRATIVE REQUIREMENTS 10. The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(4) as this claim .arose under the Constitution, laws, or treaties of the United States, and under § 717 of Title VII, 42 U.S.C. § 2000e-16(c). 11. Venue is proper in this Court pursuant to 42 U.S.C. § 2000e-5(:t)(3), because Defendant's unlawful employment practice was committed in Manhattan, employment records relevant to Defendant's illegal actions are maintained and administered in New York City, and Plaintiff Eugene Johnson would have worked in New York City but for Defendant's unlawful employment practice. Additionally, venue is proper pursuant to 42 U.S.C. § 1391(e)(3) because
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Mr. Johnson resides within this judicial District. 12. On August 10,2009, Plaintiff Evelyn Houser filed an Informal EEO Complaint
based on her denial of temporary employment with Census. Ms. Houser explicitly challenged the policy employed by Census of excluding applicants with criminal history as having a racially disparate impact in violation of Title VII, and included in her complaint references to the three EEOC Guidance statements bearing on the use of arrest and criminal conviction records in employment. On August 28,2009, Ms. Houser filed a timely written Charge of Discrimination with the Equal Employment Opportunity Office of the Department of Commerce ("EEO Office"). On September 29, 2009, the EEO Office rejected that charge by issuing a Final Agency Decision dismissing Ms. Houser's complaint. Plaintiff appealed that decision to the Board of Review of the u.S. Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a Decision on January 29,2010, which Plaintiff received on or about February 1,2010. The EEOC Decision explicitly provides that Plaintiff has the right to file a civil action in federal District Court within ninety calendar days from the receipt of the Decision.
13. In addition, Defendant has been on notice from the EEOC and other deterred and excluded applicants for over a year of the class-wide discriminatory impact of Census' criminal background screening policy. Any and all other prerequisites to the filing of this suit have been :met.
FACTUAL BACKGROUND
14. Roughly four million people are applying for more than one million temporary positions for the 2010 census. Some of these positions--Census Takers (also known as Enumerators), Census Crew Leaders, and Recruiting Assistants-involve interacting with the public. Another position, as Clerk, involves office work, where employees have no personal interaction with the public. Each applicant takes a written test and completes an application,
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which includes a question as to whether the individual has been convicted of a crime within the past 10 years. Census then conducts an FBI background check on all applicants, which searches for all arrests, regardless of whether a conviction resulted, and has no time limitation. Census requires that within less than 30 days of being notified of a match in the FBI database, all applicants with an FBI record must produce the "official court documentation" of all arrests to remain eligible for employment, even where an individual's record shows no disqualifying criminal activity on its face. This unnecessary administrative barrier, which easily could be removed without harming Census' obligation to create a safe and effective temporary workforce, is the mechanism at the heart of this case.
A. The FBI Background Check 15. To conduct the background check, Census runs each applicant's name (and other personal identifiers) through the Federal Bureau ofInvestigation (FBI) Criminal Justice Information Services Division's Name Index (the "FBI database"). The database is enormous. Law enforcement agencies across the United States arrest approximately 14 million people per year, and over 70 million people in the country, well over 20% of the adult population, have a criminal record. Virtually all of these arrests remain in the FBI database forever. 16. As Census knows well, and as reported by the U.S. Department of Justice's Bureau of Justice Statistics, the FBI database is missing fmal disposition information for roughly halfof all of its arrest records. Thus, for millions of people, their entire criminal history consists of having been arrested and fingerprinted, butnever convicted. These quick releases may occur due to circumstances such as the police picking up the wrong person, participating in a protest, lack of evidence, or determining that someone made a false crime report. Often, upon review of the facts, the district attorney declines to prosecute the case and the investigation is terminated. Indeed, the total number of prosecutorial declinations on an annual basis is over half a million
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nationwide. Others in the FBI database have actually gone to trial and been found not guilty by a jury of their peers, yet even these individuals may have no record of a disposition.
B. Census' Concealed Suitability Policy 17. The actual test used by Census to determine each applicant's suitability based on criminal history has been carefully concealed from public view. Census Bureau Director Robert Groves has provided just a scant outline, stating that Census automatically disqualifies: (1) any applicant with a prior conviction or pending charge for "certain categories of crimes, such as murder, sex offenses, robbery, voter fraud, or other crimes that suggest a threat to safety or the integrity of census data;" and (2) any applicant with a prior conviction or pending charge for crimes of "dishonesty," burglary, theft, or vandalism, "except when the person conclusively demonstrates that he or she does not present a current threat." 18. The law is quite clear that Census cannot disqualify applicants based on arrest charges alone (unless the charge is pending, in which case a conviction may still result). The federal government recognizes that restrictions on hiring individuals on the basis of arrest records are discriminatory and illegal. The 1990 EEOC Policy Guidance ("EEOC Guidance") on the use of arrest records for employment decisions states: "[A]rrests alone are not reliable evidence that a person has actually committed a crime." The Guidance relies upon the Supreme Court decision inSchware v. Board ofBar Examiners, 353 U.S. 232, 241 (1957), holding that "[t]he mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct." The EEOC Guidance further addresses the precise situation presented in this case: "Even where there is no direct evidence that an employer used an arrest record in an employment decision, a pre-employment inquiry regarding arrest records may violate Title VII. It is generally presumed that an employer only asks questions which he/she deems relevant to the employment decision." Additionally, the Department of Justice recognizes that it is improper to
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stigmatize arrestees as criminals, and considers any arrest without disposition, where one year or more has elapsed from the date of arrest with no active prosecution of the charge, to be a "nonconviction." 28 C.F.R. Ch. I, sec. 20.3(q).
19. From Director Groves' statement it appears as well that certain serious crimes of violence and dishonesty result in exclusion, and that Census has a procedure to demonstrate rehabilitation. Since the application form asks only about criminal activity in the past 10 years, Census appears to have a temporal limit, or at least guideline, for exclusion as well. Beyond these general parameters, Census refuses to tell applicants, the general public, or even a congressional oversight committee, which crimes in particular mandate exclusion; whether there is any temporal limitation, including whether juvenile records can be considered; whether any distinction is made between non-criminal offenses, misdemeanors, and felonies; and any other factors it deems relevant to the determination.
c. Census' Employment Screening Process
20. Each Census applicant whose name has a match in the FBI database is sent a form letter, which states in substance as follows:
A. If you do not dispute the identity of the arrest record in question, provide OFFICIAL COURT documentation on any and all arrest(s) and/or conviction(s) in your past; B. If you wish to dispute the identity of the arrest record in question, you may provide a set of original fingerprints ... Plaintiffs refer to this as the "30-day letter." 21. On its face, the 30-day letter has two fatal flaws: (a) the letter screens applicants .with arrests but no convictions, and (b) the letter requires documentation of "any and all" arrests, ,even though Census' stated policy is to address only a conviction or pending charge "that affects hiring eligibility." In other words, the 30-day letter places a substantial burden on class members .whose FBI record--even if assumed to be 100% true-would not make the applicant excludable
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under well-established legal precedent barring the use of arrest-only records, and under Census' own criminal background policy. There can be no justification for creating a hurdle for individuals to supply official court records of arrests, at a significant cost, that by Census' own definition should not lead to an adverse employment decision. The screen also violates the Department of Justice's directive disapproving any employer policy that requests that applicants obtain official certification of no criminal record. 28 C.F.R. Ch. I, sec. 20.21(c)(2), pp. 414,421.
22. The 30-day letter also fails to identify for the applicant the purported criminal activity found in the FBI database search that is the basis for Census' concern, thereby sending the applicant on an often futile exploration for records of any police interaction in their past. The older and less serious those records, the more difficult they are to find, placing a greater burden on those applicants whose history least approximates actual risk, like the named plaintiffs in this suit.
PARTIES 23. Plaintiff Eugene Johnson applied to the Census local office in Manhattan,New York on or about January 13, 2010. Mr. Johnson, who is 48 years old, is an African American resident of the Bronx who has lived in New York City all his life. 24. Mr. Johnson has an extensive work history in positions involving direct contact and interaction with the public, making him well-qualified to take on a Census Taker position. His many years of contract work in the field of market research, for firms including Harris Interactive (helping to conduct various Harris Polls) and CMR Market Research, and his work performing research with the Coalition for the Homeless, have given him invaluable experience in communicating with the public and gaining people's trust so that they answer questionnaires accurately. In addition, he has developed sales and marketing experience in his positions as an office supply salesperson for Standard Technology and as an independent sales contractor for
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Click Ban1e For the past four years, to supplement his income from his contract positions, Mr. Johnson has worked part-time for Newman & Leventhal Caterers, a company that caters upscale events at locations including the Waldorf Astoria Hotel and the Park Avenue Synagogue.
25. Mr. Johnson would be equally suited to an office position with Census. Having earned a GED in 1980, he has taken college courses through the State University of New York's Manhattan and Brooklyn Educational Opportunity Centers, where he is currently enrolled in a finance course. He is trained and skilled at data entry, and worked in this field for the Coalition for the Homeless. He also has training, interest and experience in radio broadcasting, and through this work and market research positions has developed skills at conducting telephone interviews and explaining complex concepts in simple terms.
26. Mr. Johnson was arrested on misdemeanor assault charges in 1995, stemming from a dispute with his landlord concerning the rent due on his apartment. Mr. Johnson was convicted of the charges after a very brief bench trial in 1996, but was sentenced to perform community service and pay restitution rather than serve any time in jail. He complied with this sentence.
27. Census sent Mr. Johnson the 30-day letter on January 25, 2010; he received it several days thereafter. He went to the New York City Criminal Court and obtained an official .disposition slip for his conviction. That document was ink-stamped "Sealed After Conviction." Reading this disposition slip and believing his conviction to have been sealed, Mr. Johnson sent the document to Census on February 22, 2010-the same day he received it-together with a letter discussing the conviction and explaining his interest in and qualifications for Census work. Mr. Johnson subsequently learned that the ink-stamp was placed on the slip in error and that his conviction is not sealed.
28. To this date, Mr. Johnson has received no response to his February 22 letter and
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has not been hired by Census. He currently works part-time and is interested in and available to work for Census if hired.
29. Plaintiff Evelyn Houser is a 69 year old African American resident of Philadelphia, Pennsylvania. Ms. Houser has lived in Philadelphia for decades, and has contributed to her community as a block captain, committee person, and poll worker. Ms. Houser is presently retired, but has a life-long history of work in housekeeping, security and .office positions, counseling, home health aide positions, data entry, and retail. She has also raised four children on her own.
30. Ms. Houser worked for Census in 1990. She started as a Census Taker, and then was given an office job, where she was involved in hiring, including helping to perform background checks, interviewing candidates, and speaking with job applicants on the telephone. She performed both jobs well.
31. After applying for a temporary position for the 2010 census, Ms. Houser received the 30-day letter in March 2009. Census did not provide Ms. Houser with a copy of the arrest record about which it was requesting information. As a result, Ms. Houser did not know with certainty what was on the record to which she was expected to respond. On March 31, 2009, Ms. -Houser obtained a set of her fingerprints. She mailed them to Census on or about the same day, which was within the 30-day period in which Census requested a response to its letter. Ms. Houser believed that providing the fingerprints was a satisfactory response to the 30-day letter. She did not understand that she might have to provide court documentation to comply with Census' requests.
32. Census denied Ms. Houser's application. By letter dated May 21,2009, Census informed Ms. Houser that she had not provided the requested information within 30 days. It also stated that as a result of her failure to act as requested, she was no longer being considered for
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employment. Ms. Houser then appealed to the EEO office of the Department of Commerce, and then to the EEOC, as discussed above. Ms. Houser remains available to work for Census if she were to be hired.
33. Ms. Houser has a 1981 case for theft and forgery. The case involved a single check she that had found near a dumpster. Because she was desperate for money for her family, she cashed it. In the 1981 criminal case, Ms. Houser was placed in a diversionary program known in Pennsylvania as "accelerated rehabilitative disposition" (ARD). She was never formally convicted. Ms. Houser has not been arrested since the 1981 case, almost 30 years ago.
34. Because of her clean criminal record over the last 30 years, her prior satisfactory employment by the Census Bureau (which was after her criminal case), her extensive work history, and her civic activities in her neighborhood, Ms. Houser is a strong job applicant to be a Census employee. Ms. Houser remains ready, willing and able to work for Census if she were to be hired.
35. At all times relevant to this complaint, Plaintiffs have been applicants for employment to an executive agency of the United States government within the meaning of Title VII, 42 U.S.C. § 2000e-16(a).
36. Defendant Gary Locke is the Secretary of the United States Department of Commerce, and has full authority over the United States Census Bureau. 42 U.S.C. § 2000e16(c).
STATEMENT OF THE CLAIM A. The Census Hiring Process has a Discriminatory Racial and Ethnic Impact 37. Census' screening practice effectively imports the severe racial and ethnic disparities in the criminal justice system into the employment process, thereby mUltiplying the negative impact on African American, Latino, and Native Americanjob applicants with arrest
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·...
and minor conviction histories. Indeed, the Department of Justice recognizes that a practice of using the FBI criminal records database in a widespread manner for criminal screening, without further refinement, undermines employment anti-discrimination policies.
38. Racial disparities in the U.S. criminal justice system are severe. African Americans, Latinos, and Native Americans are far more likely to have arrest records and convictions than whites. While African Americans make up approximately 12.3% of the population, they account for approximately 28.3% of arrests and an even greater percentage of felony convictions nationwide. Similarly, Latinos are arrested and incarcerated at rates significantly higher than their proportion of the population. Native Americans make up approximately 0.8% of the U.S. population, but they account for approximately 1.3% of arrests natl.Onwl'de. 1
39. Most arrests are for minor crimes and non-criminal offenses. For example, these charges often include activity such as curfew and loitering violations, vagrancy, and disorderly conduct. African Americans are far more likely (by as much as 15 times) than whites to be arrested for low-level offenses. Yet very few (less than 20%) of the arrests of African Americans for these offenses result in convictions.
B. The 30-Day Letter Creates a Barrier to Employment that is Neither Job-Related nor Consistent with Business Necessity
40. The 30-day letter screens out applicants who are otherwise eligible according to Census' hiring standards, i.e. those with arrests but no convictions (or pending charges), and those with convictions that are old or do not relate to violence or dishonesty. First and foremost, Census does not identify the criminal history information from the FBI report that causes Defendant's concern. By requiring applicants to provide official court documentation of all
I The statistics cited in this Complaint are derived from publicly available sources and are subject to that limitation.
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arrests, Census has created a hurdle that is often insurmountable, and in many cases is literally impossible to overcome. Many of the official documents that Census requires simply do not exist. Even where compliance is not a literal impossibility, the difficulty, time, and expense of attempting to comply within 30 days presents a significant impediment to many applicants. These requirements presuppose that the individual can accurately remember the details of past occurrences and what may have been alleged. If the individual is not able to comply within 30 days, their application, like Ms. Houser's, is automatically denied with no opportunity to reapply.
41. Ironically, the directive in the 3D-day letter to produce documentation of "any and all arrest(s) and/or conviction(s)" deters or excludes many ofthe best-qualified applicants with arrest records of non-criminal or insignificant charges that are decades old. Generally speaking, the more irrelevant one's record, the harder it is to find, and the more likely one is to fail to obtain and submit it, especially when limited to less than a month to do so. Census thus
unnecessarily excludes qualified potential workers, and undermines its own publicized goal of
"indigenous hiring," i.e. hiring people to work in the communities in which they live. This not only violates Title VII, but it increases the risk that Census will end up with a substantial undercount in communities of color. There is already a low mail-in response rate in many such communities, making the need to hire putative class members all the more critical.
1. Compliance with the 30-Day Letter is Impossible for Many Applicants 42. Many people with criminal histories have had their records expunged or sealed, and have been returned to the legal position of having never been arrested or convicted. As ofthe latest report in 2006, sixteen states and the District of Columbia have statutes providing for expungement of felony convictions; twenty states have statutes that provide for setting aside felony convictions; and fifteen states have statutes that provide for the sealing of conviction
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records. However, often these expungements and sealings are not reported to the FBI from the states in which they originated, so the records of convictions are never removed from the FBI database. Yet, many ofthese records are not accessible to members of the general public, and some expunged or sealed records are actually destroyed (e.g. Pennsylvania) or made unavailable for release (e.g. New Jersey and Arkansas). In a number of states and localities, regardless of expungement or sealing, criminal records have been destroyed pursuant to official record retention policies or by inadvertence. Thus, many Census applicants are caught in a Catch-22: you cannot be hired unless you provide an official document that no longer exists, but failure to respond with official documentation leads to automatic rejection.
2. Compliance with the 30-Day Letter is Unduly Burdensome 43. Even where records have not been destroyed, a vast number of applicants are faced with insurmountable hurdles in determining where their records are kept and how to obtain them. The process by which official court records can be obtained is unknown to many applicants, especially those with only fleeting interaction with the criminal justice system. The 30-day letter fails to provide even the simplest advice on which records to obtain and how to obtain them-not even a list of phone numbers or web sites. Obtaining such records often requires sophistication about the background record-keeping system, which varies widely from state-to-state and locality-to-Iocality. 44. Additionally, because Census directs them to provide "all" official records, many applicants face the nearly impossible burden of finding records that are decades old, possibly located in a different state, in a little over three weeks. Even where conceivably possible, the cost and delay involved in such a search are cumulative and prohibitive. This has a particular impact on retirees living on limited incomes, whom Census actively encourages to apply. To make matters worse, the directive to supply "all" official records of "any arrest" literally includes
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juvenile infractions. 3. The 30-Day Letter is Ambiguous and Creates Confusion
45. Many applicants are rightly confused as to what constitutes an arrest. There is no universal definition of when a person is arrested. Por example, the Department of Justice distinguishes between an "arrest" and "detention," without clearly defining either. (28 c.P.R. § 20.3(d)). Ifpeople are not sure whether an encounter with the police has been reported as an arrest, they will not know which incidents to investigate. In many African American and Latino neighborhoods, where stop-and-frisk and other encounters with police frequently occur, it is hard to know which interactions resulted in a record and which did not.
46. There is also significant ambiguity in the term "official court documentation" used in the 30-day letter. There is a wide spectrum of possibilities, from mere disposition statements to full court transcripts. In some states, such as Pennsylvania, individuals can obtain computergenerated summary dispositions that identify the criminal history, but are not original documents. As another example, in New York, the Office of Court Administration provides criminal background reports, but they are not certified; an official court document with the court seal affixed must be obtained from the court of origination, which provides a Certificate of Disposition.
47. Additionally, each state maintains its own repository of criminal records. Por many people seeking their criminal records, this is the most obvious source of retrieval, especially since many repositories have automated features and can be contacted on-line. However, many criminal records that appear in the PBI database are not accessible to applicants through their state repositories. Indeed, well over 10% of criminal records nationwide are in what the Department of Justice classifies as "Closed Record States," where criminal records are unavailable to Census applicants due to strict limitations on production. In some states where
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records are not completely closed, disposition information will not be disclosed even upon request by the subject of the record.
48. Additionally, the delay created by the 30-day letter-and the series of events that it triggers, including follow-up letters with further directives-is itself a significant barrier to employment. Even for those who are eventually hired, the delay imposed by this process harms Class members, especially those struggling with financial hardship in the current economic climate of high unemployment.
C. There is a Less Discriminatory Alternative that Would Better Achieve Census' Legitimate Hiring Interests, Which Can be Implemented Easily and Quickly 49. As discussed above, the 30-day letter creates a significant barrier to employment that deters or excludes many qualified applicants. The simple resolution to this problem is for Census to cease using the 30-day letter and grant eligibility to all qualified applicants with arrests only or with convictions that are not excludable under Cenus policy. In detail, the less discriminatory alternative would include the following steps: (1) All applicants with a record of an arrest over one year old at the time of application and no disposition, including those with juvenile adjudications or convictions that have been expunged or sealed, should be given the same consideration as applicants whose names do not appear in the FBI database, unless Census provides the applicant with documented evidence that the individual has been convicted of a crime of violence or dishonesty that is a proper basis for excluding them from consideration under Census policy; (2) All applicants with an FBI record of conviction for a crime that does not include violence or dishonesty, which according to Census policy should not be considered in determining hiring eligibility, shall be given the same consideration as applicants whose names do not appear in the FBI database;
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(3) Consistent with (1) and (2) above, all applicants with convictions (or pending charges) for crimes of violence or dishonesty that subject the individual to exclusion from hiring based on Census policy promptly should be given a written description of the conviction(s) (or pending charge) that form the basis for presumptive exclusion; and
(4) Census should ask each presumptively excludable applicant in (3) if they contest the identified conviction(s), and, for pending charges, whether a disposition has occurred. Each such individual should be given a meaningful opportunity to meet Census' explicit exception for anyone who "demonstrates that he or she does not present a current threat," through evidence of rehabilitation, an explanation of events leading to the conviction, or other mitigating factors . Census should then promptly evaluate such evidence.
CLASS ACTION ALLEGATIONS 50. Plaintiffs are members of the Class, which includes applicants for whom there is no record of conviction (excluding those with charges pending at the time of application), or Who are otherwise suitable for employment based on the Census Bureau's criminal background exclusion factors, and who either (1) were deterred from complying with the 30-day letter and did not respond to it, or (2) responded to the 30-day letter (regardless of whether the response was ultimately deemed adequate or timely), and who were denied employment or have not been given a final response to their application. 51. The members of the Class are so numerous that joinder of all of them is impracticable. Census recruits for decennial positions throughout the United States and screens all of the approximately 4 million applicants using the FBI database to hire around 1.4 million temporary employees. 52. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include,
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but are not limited to: (1) Whether it is Defendant's policy or practice to deter or exclude temporary job applicants with criminal histories who have never been convicted or who are otherwise eligible for employment based on Census' criminal background exclusion factors; (2) Whether Defendant's policy or practice to deter or exclude job applicants based on criminal history has a disparate impact on African American, Latino, and Native American applicants; (3) Whether Defendant's policy or practice to deter or exclude job applicants based on their criminal history records is job related and consistent with business necessity; (4) Whether less discriminatory policies exist that would meet Defendant's legitimate needs; and (5) What . equitable and injunctive relief for the Class is warranted. It is notable for commonality that Defendant acknowledges that Census has a single, uniform background check procedure that is used for all decennial applicants.
53. Plaintiffs' claims are typical of the claims of the Class: (1) Each of the Plaintiffs applied for a temporary position in the 2010 census; (2) Each was processed through the same application procedure; (3) Each waS subj ected to substantially the same screening device; (4) Each was sent substantially the same form letter that constructively denied them the position or deterred them from pursuing the job further; and (5) Each has the same discrimination claim based on disparate impact. All of these claims are shared by each and every class member.
54. Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have no conflict with one another or any class member. Plaintiffs are committed to the goal of having Census revise its hiring policy and practice to reduce or eliminate its discriminatory impact on African American, Latino, and Native American applicants.
55. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof.
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56. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Defendant has acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class members are entitled to injunctive reliefto end Defendant's common, uniform, unfair, and discriminatory policies and/or practices.
CLAIM FOR RELIEF (Title VII of the Civil Rights Act of 1964,
42 V.S.C §§ 2000e et seq.) 57. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 58. Plaintiffs bring this claim on their own behalf and on behalf of the Class. 59. Defendant's policy and practice of using a pre-employment screen that deters or excludes applicants with arrest or irrelevant conviction records from obtaining employment opportunities, has harmed, and continues to harm, Plaintiffs and the Class, and constitutes unlawful discrimination on the basis of race, ethnicity, color, and/or national origin in violation of 42 U.S.C. §§ 2000e et seq. 60. Defendant's policy and practice of using a pre-employment screen that deters or excludes applicants with arrest or irrelevant conviction records from obtaining employment opportunities has a disparate impact on African Americans, Latinos, and Native Americans, and is neither job related nor consistent with business necessity. Even if Defendant's policy and practice of denying employment opportunities based on applicants' criminal history records could be justified by business necessity, less discriminatory alternatives exist that would equally serve any legitimate purpose. 61. Plaintiffs and the Class have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the Class they seek to represent are now
19

suffering, and will continue to suffer, irreparable injury from Defendants' discriminatory acts and omIsSIOns.
62. Defendant's conduct has caused, and continues to cause, Plaintiffs and the members ofthe Class substantial losses in earnings and other employment benefits.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs and the Class pray for relief as follows:
63. Certification of the case as a class action on behalf of the proposed Class; 64. Designation of Representative Plaintiffs Eugene Johnson and Evelyn Houser as representatives on behalf of the Class; 65. Designation of Representative Plaintiffs' counsel of record as Class counsel; 66. A declaratory judgment that the practices complained of herein are unlawful and violate Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq.; 67. A preliminary and permanent injunction against Defendant and all officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful policies, practices, customs and usages set forth herein, consistent with the less discriminatory alternative described above; 68. An order that Defendant institute and carry out policies, practices, and programs that provide equal employment opportunities for all Class members who would be eligible under application ofthe Uniform Guidelines for Employee Selection Procedures and related EEOC Guidance, and that Defendant eradicate the effects of past and present unlawful employment practices; 69. An order restoring Plaintiffs and Class members to their rightful positions at Census as applicants, and requiring that they be given priority consideration for hire in job vacancies in the positions for which they are qualified, or in lieu of instatement, an order for front
20

pay and benefits; 70. Back pay accruing as a result of a delay in hiring Plaintiffs and Class members
caused by the illegal policies and practices alleged herein; 71. Costs incurred herein, including reasonable attorneys' fees to the extent allowable
by law, including but not limited to 42 U.S.C. §§ 2000e-5(k) & 2000e-16; 72. Pre-judgment and post-judgment interest, as provided by law; and 73. Such other and further legal and equitable relief as this Court deems necessary,
just, and proper.

Dated: New York, NY April 13, 2010

Respectfully submitted,

By:

OUTTEN & GOLDEN LLP
Adam T. Klein (AK 3293) Justin M. Swartz (JS 7989) Samuel R. Miller (SM 2511) Lewis M. Steel (LS 4463) Ossai Miazad (OM 1127) Rachel M. Bien (RB 6919) Melissa Pierre-Louis (MP 4946) 3 Park Avenue, 29th Floor New York, NY 10016 Telephone: 212-245-1000

and

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Audrey Wiggins* Sarah Crawford* 1401 New York Ave., NW Washington, DC 20005

CENTER FOR CONSTITUTIONAL RIGHTS
Anjana Samant (AS 5163) Darius Charney (DC 1619) 666 Broadway 7th Floor New York, NY 10012

21

COMMUNITY SERVICE SOCIETY
Judy Whiting (JW 8665) Paul Keefe (PK 1618) 105 East 22nd Street New York, NY 10010
COMMUNITY LEGAL SERVICES, INC.
Sharon Dietrich* 1424 Chestnut Street Philadelphia, PA 19102
LatinoJustice PRLDEF Richard Bellman (RB 0049) Jackson Chin (JC 3494) 99 Hudson Street, 14th Floor New York, NY 10013

INDIAN LEGAL RESOURCE CENTER
Robert T. Coulter* 602 North Ewing Street Helena, MT 59601
PUBLIC CITIZEN LITIGATION GROUP
Mike Kirkpatrick* 1600 20th St. NW Washington, DC 20009
*pro hac vice applicationforthcoming
Attorneys for Plaintiffs and the Putative Class

22

 
 ~ Case 1:10-cv-03105-FM Document 20 Filed 05/19/10 Page 1 of 1

AD 85 (Rev. 01109) Notice. Consent, BIld Reference ofa Civil Action to a Magislnlte Judie

USOC SDNY .~...
OOcUMENT i i

UNITED STATES DISTRICT Co
for the Southern District of New York

Eugene Johnson and Evelyn Houser,
Plaintiff
v.
Gary Locke, Secretary, U.S. Dept. Commerce
Defendan,

) ) ) Civil Action No. 10-3105 (RMB)(FM) ) )

NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
Noliee ofa magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment ofthis court. A magistrate judge may exercise this authority only if all parties voluntarily consent.

You may consentto have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences, The name ofany party withholding consent will not be revealed to any judge who may otherwise be involved with your case.

Consent to a magistrate judge's authority. The following parties consent to have a United States magistrate jUdge conduct all proceedings in this case including trial, the entry of fmal judgment, and all post-trial proceedings.

Parties' printed names Eugene Johnson Evelyn Houser Gary Locke, US Dept. Commerce

Dates
05/1212010 05/12/2010

RefereDce Order IT IS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and
:";b:;JOO"~'"-~-?l:;:l;i:~.~
Districl Ju.dge's signature
Printed name and rille
Note: Return this form to the clerk of court only if you are consenting to the exercise ofjurisdiction by a United States magistrate judge. Do not return this form to a judge.

 
 Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 1 of 32

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- - x

EUGENE JOHNSON and EVELYN HOUSER :

on behalf of themselves and others similarly

:

situated,

:

Plaintiffs, :

:

- against -

:

:

GARY LOCKE, Secretary, United States

:

Department of Commerce,

:

Defendant. :

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

10 Civ. 3105 (FM) ECF Case

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE COMPLAINT

ALLISON D. PENN DANIEL P. FILOR Assistant United States Attorneys
- Of Counsel -

PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street – 3rd Floor New York, New York 10007 Tel: (212) 637-2725/26 Fax: (212) 637-2717 Email: Allison.D.Penn@usdoj.gov
Daniel.Filor@usdoj.gov

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 2 of 32
TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................2
I. Background ..............................................................................................................2 A. Houser’s Application for Employment to the Census Bureau.....................2 B. CHEC Procedures ........................................................................................3 C. Houser’s EEO Complaint ............................................................................4 D. Eugene Johnson ...........................................................................................5 E. District Court Complaint..............................................................................5
ARGUMENT ...................................................................................................................................5 POINT I ...........................................................................................................................................5 THE COURT SHOULD DISMISS THE COMPLAINT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES .......................................................................5
A. Legal Standards .......................................................................................................5 B. The District Court Should Review De Novo the EEOC’s Timeliness Finding.......7 C. Houser Failed to Exhaust Her Administrative Remedies Under Title VII ..............8 D. Houser Had Constructive Knowledge of the Forty-Five Day
Time Limitation .....................................................................................................10 E. Houser is Not Entitled to Equitable Tolling or Estoppel..........................................13 POINT II .......................................................................................................................................15 EVEN IF HOUSER HAD TIMELY EXHAUSTED HER INDIVIDUAL ADMINISTRATIVE REMEDIES, THE COMPLAINT’S CLASS ALLEGATIONS MUST BE DISMISSED ...................................................................................15 A. Houser Did Not File a Class Administrative Complaint .......................................15

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 3 of 32 B. Even If Houser's EEO Complaint Had Been Filed on Behalf of a Class,
It Would Not Encompass the Broad Class Allegations in the Federal Complaint..................................................................................................18 POINT III.......................................................................................................................................22 JOHNSON FAILED TO EXHAUST ADMINISTRATIVE REMEDIES AND SHOULD NOT BE PERMITTED TO “PIGGYBACK” IN FEDERAL COURT ......................................................................................................................22 A. Johnson Failed to File an EEO Complaint.............................................................22 B. Johnson Cannot “Piggyback” on Houser’s Individual EEO Complaint ................22 CONCLUSION ..............................................................................................................................25
ii

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 4 of 32

TABLE OF AUTHORITIES

Cases

Page

Ashcroft v. Iqbal, 556 U.S.-, 129 S. Ct. 1937, 1950 (2009) .......................................................................6

Baldwin Cnty. Welcome Ctr.v. Brown, 466 U.S. 147 (1984).................................................................................................9, 10

Belhomme v. Widnall, 27 F.3d 1214 (10th Cir. 1997) .....................................................................................17

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).......................................................................................................5

Berry v. Florida Int’l University Bd of Trustees, No. 06 Civ. 21936, 2008 WL 410129 (S.D. Fla. Feb. 12, 2008).................................12

Boos v. Runyon, 201 F.3d 178 (2d Cir. 2000).....................................................................................8, 13

Briones v. United States Postal Serv., 101 F.3d 287 (2d Cir. 1996)...........................................................................................7

Brown v. General Services Admin., 425 U.S. 820 (1976).......................................................................................................8

Brown v. Principi, No. 04 Civ. 1232 (PAC), 2007 WL 959375 (S.D.N.Y. Mar. 29, 2007) ......................11

Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002)...........................................................................................6

Conteras v. Ridge, 305 F. Supp. 2d 126 (D.D.C. 2004) .............................................................7, 20, 21, 24

Dangler v. New York City Off Track Betting Corp., 193 F.3d 130 (2d Cir. 1999)...........................................................................................6

Debose v. Fedex Corp., No. 08 Civ. 07042, 2009 WL 1542572 (S.D.N.Y. June 2, 2009)...............................21

Dillard v. Runyon, 928 F. Supp. 1316 (S.D.N.Y. 1996).........................................................................9, 14

iii

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 5 of 32
Downes v. Adams, No. 81 Civ. 61, 1982 WL 31035 (E.D.N.Y. May 19, 1982)..................................15, 16
Fausto v. Reno, 955 F. Supp. 286 (S.D.N.Y. 1997)...............................................................................14
German v. Pena, 88 F. Supp. 2d 216 (S.D.N.Y. 2000)............................................................9, 10, 11, 13
Gilbert v. Tisch, No. 86 Civ. 3933, 1987 WL 14908 (S.D.N.Y. July 21, 1987) ...................................12
Girard v. Dep't of Treas., 62 F.3d 1244, 62 F.3d at 1245 .......................................................................................7
Gulley v. Orr, 905 F.2d 1383, 1385 (10th Cir. 1990) ..........................................................................17
Harris v. Mills, 572 F.3d 66 (2d Cir. 2009).............................................................................................6
Holdmeyer v. Veneman, 321 F. Supp. 2d 374 (D. Conn. 2004) ..........................................................................14
Holowecki v. Federal Express Corp., 440 F.3d 558 (2d Cir. 2006)...........................................................................................6
Holowecki v. Federal Express Corp., 644 F. Supp. 2d 338 (S.D.N.Y. 2009).............................................................20, 22, 23
International Union v. Clark, No. 02-1484, 2006 WL 2687005, at *6 (D.D.C. Sept. 12, 2006) ...............................17
Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990)........................................................................................................9
Johnson v. Runyon, 47 F.3d 911 (7th Cir. 1995) .........................................................................................12
Judge v. Henderson, 172 F. Supp. 2d 410 (S.D.N.Y. 2001)..........................................................................12
Mangiafico v. Blumenthal, 471 F.3d 391 (2d Cir. 2006)...........................................................................................6
iv

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 6 of 32
Marinelli v. Chao, 222 F. Supp. 2d 402 (S.D.N.Y. 2002)..........................................................................11
Marshall v. Nat’l Assoc. of Letter Carriers, 00 Civ. 31767 (LTS), 2003 WL 223563........................................................................7
McClain v. Lufkin Industrial, 519 F.3d 264 (5th Cir. 2008) ...........................................................................20, 21, 24
McKenzie v. Principi, No Civ. A. 01-0221, 2001 WL 1005931 (E.D. La. Aug. 29, 2001).............................17
McKnight v. Gates, 282 Fed. Appx. 394, 2008 WL 2491626 (6th Cir. June 23, 2008) ..............................16
Miller v. International Telegraph & Telegraph Corp., 755 F.2d 20 (2d Cir. 1985)...........................................................................................13
Mohasco Corp. v. Silver, 447 U.S. 807 (1980)....................................................................................................10
Moultrie v. Potter, No. 04 Civ. 6887, 2006 WL 1495234 (S.D.N.Y. May 31, 2006)................................13
Murphy v. West, No. 98-2308, 1999 WL 64284 (4th Cir. Feb.11, 1999) ...............................................16
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).......................................................................................................9
Pavano v. Shalala, 95 F.3d 147 (2d Cir. 1996)...........................................................................................16
Riley v. Potter, No. 08-5167, 2010 WL 125841 (D.N.J. Jan. 7, 2010).................................................17
Rosario v. Potter, 07 Civ. 5891 (SCR) (GAY), 2009 WL 3049585 .........................................................11
Rothman v. Gregor, 220 F.3d 81 (2d Cir. 2000).............................................................................................6
Seitzinger v. Reading Hospital & Medical Ctr., 165 F.3d 236 (3d Cir. 1999).........................................................................................10
v

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 7 of 32
Sherlock v. Montefiore Medical Ctr., 84 F.3d 522 (2d Cir. 1996)...........................................................................................10
Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986).......................................................................................22
Spector v. Board of Trustees of Community-Technical Colleges, No. 3:06-cv-129, 2007 WL 4800726 (D. Conn. Dec. 27, 2007) ................................ 23
Torres v. U.S. Dep't of Veterans Affairs, No. 02 Civ. 9601 (HBP), 2004 WL 691237 ...................................................................9
Ulvin v. Northwestern Nat’l Life Ins. Co., 943 F.2d 862, 865-66 (8th Cir. 1991) .....................................................................20, 24
Vuyanich v. Republic National Bank of Dallas, 723 F.2d 1195 (5th Cir. 1984) ....................................................................................20
Statutes 42 U.S.C. §§ 2000e ..............................................................................................................1 Regulations 29 C.F.R. § 1614.103 ...........................................................................................................8 29 C.F.R. § 1614.105 .....................................................................................8, 9, 10, 11, 14 29 C.F.R. § 1614.204 .............................................................................................15, 16, 17
vi

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 8 of 32

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - --x

EUGENE JOHNSON and EVELYN HOUSER :

on behalf of themselves and others similarly

:

situated,

:

Plaintiffs, :

:

- against -

:

:

GARY LOCKE, Secretary, United States

:

Department of Commerce,

:

Defendant. :

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

10 Civ. 3105 (FM)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE COMPLAINT
Defendant Gary Locke, Secretary of the United States Department of Commerce (“Commerce” or the “Government”), by and through his attorney, Preet Bharara, United States Attorney for the Southern District of New York, respectfully submits this memorandum in support of his motion to dismiss the Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
PRELIMINARY STATEMENT Plaintiffs Eugene Johnson (“Johnson”) and Evelyn Houser (“Houser”) (together “plaintiffs”) applied for positions with the Census Bureau (“Census Bureau”). Houser’s employment application was denied. To date, Johnson’s employment application has not been denied. Plaintiffs are challenging the Census Bureau’s suitability investigations and decisionmaking and allege, on behalf of themselves and a purported class of individuals, that the Census Bureau’s investigative practices have had a discriminatory impact on them in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Plaintiffs’ claims, as well as the class action claims, are barred, however, because plaintiffs failed to exhaust their

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 9 of 32
administrative remedies as required by law. Johnson failed to file any administrative complaint whatsoever. While Houser filed an individual administrative complaint alleging discrimination, she was untimely in complying with her administrative exhaustion requirements, which bars her individual claims, and she failed to file a class action administrative complaint at all. Even if Houser had exhausted her administrative remedies as to her class complaint, she cannot represent the purported class because her claims are unlike the claims that she asserts on behalf of a purported class. Specifically, plaintiffs are attempting to challenge the criteria for denying employment to applicants with criminal records. Houser, however, was never denied employment based on those criteria. Accordingly, for the reasons set forth more fully below, all of plaintiffs’ claims should be dismissed for failure to exhaust their administrative remedies.
STATEMENT OF FACTS1 I. Background
A. Houser’s Application for Employment to the Census Bureau Houser applied for a temporary position at the Census Bureau in 2009. In January of 2009, Houser tested for employment at the Philadelphia Central Early Local Census Office. See Declaration of Kathryn H. Anderson, dated July 15, 2010 (“Anderson Decl.”), Exh. 1 (“EEOC File”) at USA0247. Houser had previously worked for the Census Bureau as an enumerator and in an office job in 1990. See Complaint, dated April 13, 2010 (“D.Ct. Compl.”) ¶ 30.
1 This statement draws upon the complaint filed in this action (the “Complaint”) and, where indicated, upon the record of the administrative proceedings that preceded this litigation.
2

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 10 of 32
It was the Census Bureau’s policy and practice to prominently display notices at each testing site notifying applicants of the forty-five day time limitation for seeking EEO counseling regarding any allegation of discrimination. EEOC File at USA0247. The posters clearly advised complainants of the EEO process and stated: “To preserve your rights under the law, you must contact the EEO Office within 45 CALENDAR DAYS of the date of the alleged discrimination.” EEOC File at USA0249. The posters were intended to be placed in a visible location where all applicants could see them. EEOC File at USA0250-52.
B. CHEC Procedures All applicants for temporary Census jobs go through a pre-appointment name check against the Federal Bureau of Investigation (“FBI”) Criminal Justice Information Service Division’s Name Index. EEOC File at USA0264. Applicants whose personal identifiers match those contained in the FBI Name Index are given the opportunity to dispute the identification and/or to provide official court documentation concerning the disposition of any arrests. Id.; see also D.Ct. Compl. ¶¶ 4, 14, 15, 19, 20.2 Applicants who do not properly respond within 30 days are not considered eligible for employment. D.Ct. Compl. ¶ 20; EEOC File at USA0123. After applying for a temporary position with the Census, Houser received a 30-day letter in March 2009. D.Ct. Compl. ¶ 31. On May 21, 2009, the Census Bureau mailed Houser a letter informing her that because she failed to provide the requested information within 30 days she was no longer being considered for employment. EEOC File at USA0123. Houser
2 For purposes of this motion to dismiss, the Court is to assume the truth of facts alleged in the Complaint. Defendant nevertheless notes that many of plaintiffs’ allegations are factually incorrect. By way of example, it is not correct that “all applicants with an FBI record must produce the ‘official court documentation’ of all arrests to remain eligible for employment.” D.Ct. Compl. ¶ 14. Not every arrest triggers a 30-day letter.
3

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 11 of 32
acknowledged receiving the May 21, 2009 letter “sometime after Memorial Day, in late May/early June.” EEOC File at USA0141.
C. Houser’s EEO Complaint Houser initiated contact with the EEO Office on August 10, 2009, seeking counseling. EEOC File at USA0121-22. On August 19, 2009, the Census Bureau issued Houser a Notice of Right to File (“NRTF”) via certified mail. EEOC File at USA0131-37. Houser’s legal representative acknowledged the NRTF receipt in correspondence dated August 28, 2009, and Houser filed a formal EEO complaint on that day. EEOC File at USA0113-15. In her EEO complaint, Houser alleged discrimination on the basis of her race (African-American) when the agency denied her employment on May 21, 2009. EEOC File at USA0116. Houser did not file an EEO class complaint or seek class certification during the administrative process. See Anderson Decl. at ¶ 4. On September 29, 2009, the Census Bureau issued a Final Agency Decision (“FAD”) dismissing Houser’s administrative complaint for failure to file her complaint in a timely manner. EEOC File at USA0203-09. Specifically, Houser was denied employment on May 21, 2009, and allowing three days for the letter to have reached her, she knew or should have known about the denial of employment no later than May 24, 2009. Id. “Accordingly, the deadline for timely contact with an EEO Counselor for purposes of filing a formal EEO Complaint expired on July 8, 2009 (45 days after May 24, 2009).” EEOC File at USA0205-06. The FAD also concluded that Houser had not put forth any justifiable reason for extending the 45-day time limit. EEOC File at USA0206. On October 26, 2009, Houser filed an appeal with the EEOC’s Office of Federal
4

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 12 of 32
Operations (“OFO”). EEOC File at USA0226-27. In a decision dated January 28, 2010, OFO reversed the Census Bureau’s FAD, simply noting that because Houser maintained that she did not know about the requisite time period during that period, Houser did not have notice of the time limits under the circumstances of this case. EEOC File at USA0273.
D. Eugene Johnson The Complaint does not allege that Eugene Johnson filed an EEO complaint or exhausted administrative remedies. Johnson did not file an administrative complaint with the Census Bureau. See Anderson Decl. at ¶¶ 6, 7. E. District Court Complaint On or about April 13, 2010, plaintiffs filed their Complaint in district court. Plaintiffs allege that on August 28, 2009, Houser filed a “timely written Charge of Discrimination with the Equal Employment Opportunity Office of the Department of Commerce (“EEO Office.”).” D.Ct. Compl. ¶ 12. The Complaint makes claims and seeks relief based on a purported class, whereas Houser’s administrative claim did not. Compare EEOC File at USA0116 to D.Ct. Compl. ¶ 9.
ARGUMENT POINT I
THE COURT SHOULD DISMISS THE COMPLAINT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
A. Legal Standards On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
the complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “plausibility” standard requires the reviewing court to
5

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 13 of 32
accept as true all factual allegations in the complaint and to draw all reasonable inferences in plaintiff's favor, although the reviewing court need not do so as to any legal conclusions or conclusory statements. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Deciding whether a complaint states a plausible claim for relief is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.-, 129 S. Ct. 1937, 1950 (2009)).
On a motion to dismiss, the court may consider any facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). Additionally, a court may consider documents that the plaintiff “either possessed or knew about and upon which [he] relied in bringing . . . suit.” Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (“Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.”) (internal quotations omitted); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (recognizing that the court can consider documents on which plaintiff relied in bringing suit).
Consideration of Houser’s EEO filings is proper because it is plaintiffs’ burden to satisfy the administrative exhaustion requirements. Holowecki v. Federal Express Corp., 440 F.3d 558, 565 (2d Cir. 2006) (“In reviewing the Rule 12(b)(6) ruling, it is proper for this court to consider the plaintiffs[’] relevant filings with the EEOC . . ., none of which were attached to the complaint, because the Holowecki plaintiffs’ [sic] rely on these documents to satisfy the
6

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 14 of 32
ADEA’s time limit requirements.”), aff’d, 552 U.S. 389 (2008); see also Marshall v. Nat’l Ass’n of Letter Carriers, No. 00 Civ. 3167 (LTS), 2003 WL 223563, at *8 n.3 (S.D.N.Y. Feb. 3, 2003) (in granting Rule 12(b)(6) motion court considered Precomplaint Counseling Form, EEO Complaint, EEO agency’s final decision, and EEOC decision).
B. The District Court Should Review De Novo the EEOC’s Timeliness Finding This Court is not bound by the EEOC’s administrative findings relating to timeliness and should review such decisions de novo. See Conteras v. Ridge, 305 F. Supp. 2d 126, 131 (D.D.C. 2004) (“When a plaintiff takes a Title VII complaint to court before an administrative agency has made a merits determination . . . the government is not bound by the EEOC’s adverse finding of timeliness, and the adverse finding is not entitled to deference.” (emphasis added)). Plaintiffs likely will rely on the Second Circuit’s decision in Briones v. United States Postal Serv., 101 F.3d 287, 292 (2d Cir. 1996), to argue that Defendant has waived its right to challenge plaintiffs’ exhaustion of administrative remedies as untimely. Reliance on Briones is unavailing, however, because Briones is distinguishable from the instant case. In Briones, the United States Postal Service (“USPS”) conducted an investigation and issued a final agency decision on the merits after the EEOC had reversed USPS’s decision finding a failure to meet the 45-day deadline. See Briones,101 F.3d at 289 (“[T]he Postal Service neither appealed the EEOC’s determination nor refused to proceed, but, rather, began its investigation.”) (emphasis added); see also Girard v. Dep’t of Treas., 62 F.3d 1244, 1247 (9th Cir. 1995), id. at 1245 (agency issued second final agency decision on the merits of the claim after reversal). Here, by contrast, the Census Bureau did not conduct an investigation or issue a final agency decision on the merits after it received the EEOC’s reversal on timeliness grounds.
7

Case 1:10-cv-03105-FM Document 30 Filed 07/16/10 Page 15 of 32
Rather, after the Census Bureau accepted the administrative complaint for investigation on February 24, 2010, see EEOC File at USA0301, no investigation was initiated or merit decision made. Instead, plaintiffs instituted the present action, which, by regulation, terminated the administrative processing of Houser’s administrative complaint, see EEOC File at USA0280. Thus, because Census did not have an opportunity to process Houser’s claim before she filed in district court and therefore did not investigate the claim or issue a final agency decision on the merits, Briones does not control here.
For waiver purposes, the lack of an agency investigation or final agency decision on the merits in this case is critical because, unlike in Briones, the Government has taken no affirmative action to waive the timeliness issue. During the course of an investigation into the merits, the agency would have the opportunity to discover additional facts relating to the timeliness and merits of the plaintiff’s administrative complaint, and the agency could choose whether to press the timeliness defense or waive the defense and make a final merits determination. Therefore, the Census Bureau has not waived its right to challenge the timeliness of Houser’s administrative complaint, and this Court should review de novo the facts relevant to that inquiry.
C. Houser Failed to Exhaust Her Administrative Remedies Under Title VII Under Title VII, “a litigant must exhaust available administrative remedies in a timely fashion” as a prerequisite to gaining access to the federal courts. Brown v. General Services Admin., 425 U.S. 820, 832 (1976) (emphasis added). For federal job applicants like Houser, under the governing federal EEO regulations, “prior to filing a complaint,” an “aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory . . . .” 29 C.F.R. § 1614.105(a)(1); 29 C.F.R. § 1614.103; see also Boos v.
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Runyon, 201 F.3d 178, 181 (2d Cir. 2000) (postal employee’s discrimination claim barred where plaintiff failed to seek EEO counseling within forty-five days of the alleged discriminatory incident); Torres v. U.S. Dep’t of Veterans Affairs, No. 02 Civ. 9601 (HBP), 2004 WL 691237, at *3-5 (S.D.N.Y. Mar. 31, 2004) (granting motion to dismiss employment discrimination claims for failure to exhaust administrative remedies where plaintiff failed to allege that she sought counseling within forty-five days of her termination); German v. Pena, 88 F. Supp. 2d 216, 219 (S.D.N.Y. 2000) (dismissing federal employee’s claim of discrimination because of his failure to exhaust administrative remedies in a timely manner); Dillard v. Runyon, 928 F. Supp. 1316, 1325 (S.D.N.Y. 1996) (dismissing Title VII claim of Postal Service worker who failed to contact EEO counselor within forty-five days). The regulation contains an exception which authorizes an agency or the EEOC to extend the 45-time limit:
when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known [sic] that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). “Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990) (recognizing that time limits are “a condition to the waiver of sovereign immunity and thus must be strictly construed”). Indeed, “[i]n the context of a request to alter the timely filing requirements of Title VII, th[e Supreme] Court has stated that ‘strict
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adherence to the procedural requirements specified by the legislature is the best guarantee of an evenhanded administration of the law.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108 (2002) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
Houser failed to contact an EEO Counselor within 45 days of receiving the letter informing her that she was not eligible for the job. Specifically, the Census Bureau informed Houser that she was no longer being considered for employment on May 21, 2009, yet Houser did not initiate contact with an EEO Counselor until August 10, 2009. See EEOC File at USA0123, USA0147. Courts presume that a federal agency’s notification letter is received three days after the date shown on the notice. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996) (court will presume that “a notice provided by a government agency has been mailed on the date shown on the notice,” and that “a mailed document is received three days after its mailing”); see also Baldwin Cnty. Welcome Ctr., 466 U.S. at 148 n.1; Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). Thus Houser should have initiated contact no later than July 8, 2009 (45 days after May 24, 2009), but instead, she waited to initiate contact until August 10, 2009, which was more than a month late (78 days after May 24, 2009).
D. Houser Had Constructive Knowledge of the Forty-Five Day Time Limitation Houser argued during her administrative appeal that she was unaware of the time limit for contacting an EEO counselor.3 See EEOC File at USA0224. Houser’s Complaint does not
3 While Houser disputed having actual notice, nothing in the Complaint or the EEO file precludes a finding as a matter of law respect to constructive notice. If Houser submits additional information, Defendant may seek to convert this motion to one for summary judgment and potentially engage in limited discovery. German v. Pena, 88 F. Supp. 2d 216, 221 (S.D.N.Y. 2000) (granting defendant’s motion for summary judgment after evidentiary hearing and
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make this allegation. But, even if it did, it would be inadequate to establish Houser’s entitlement to the regulatory exception set forth in 29 C.F.R. § 1614.105(b)(2).
Houser has not disputed that Census posted the relevant EEO rights; rather she has argued that she was not aware of her rights. See EEOC File at USA0224. This argument is insufficient because “a plaintiff may not establish a failure to notice exception to the forty-five day time limit merely because he chose not to acquaint himself with the substance of an EEO notification.” German, 88 F. Supp. 2d at 221. Here, the Census Bureau had a practice of prominently posting at each testing site EEO information, including the 45-day time limit for making initial EEO counselor contact. See EEOC File at USA0247. The posters displayed by the Census Bureau at the testing site highlighted the 45-day deadline. EEOC File at USA0248, USA0249. Moreover, the Census Recruiting Assistant (“RA”) Manual stated that each RA should “post the EEO poster in a visible location” and “display the EEO poster where all applicants can see it,” and the diagram included in the Manual illustrates how the EEO poster should be displayed in a prominent location. EEOC File at USA0251-52.
The posting of EEO notices “have routinely been held to constitute constructive notice to employees exposed to them, in the face of which the § 1614.105(a)(2) exception is unavailable.” Brown v. Principi, No. 04 Civ. 1232 (PAC), 2007 WL 959375, at *3 (S.D.N.Y. Mar. 29, 2007). Courts have held that such constructive notice bars claims even of plaintiffs who were not aware of the forty-five day limit. See Rosario v. Potter, No. 07 Civ. 5891 (SCR) (GAY), 2009 WL 3049585, at *7 (S.D.N.Y. Sept. 23, 2009) (EEO posters were sufficient to give constructive notice of 45-day filing requirement); Marinelli v. Chao, 222 F. Supp. 2d 402,
briefing). 11

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411-12 (S.D.N.Y. 2002) (information in EEO posters, handbook and brochure sufficient to afford constructive notice); Judge v. Henderson, 172 F. Supp. 2d 410, 414 (S.D.N.Y. 2001) (employee had constructive notice where EEO poster displayed at workplace).
Houser also had constructive notice because, from the time of Houser’s application for employment until the present day, EEO information was available on the Census Bureau’s website. See EEOC File at USA0253-55. The language of the EEO website and linked documents described the EEO process, including informal EEO counseling, and state that EEO contact was required within 45 days. Id. (referring to www.census.gov/eeo/); see also Berry v. Florida Int’l Univ. Bd of Trustees, No. 06 Civ. 21936, 2008 WL 410129, at *6 & n.4 (S.D. Fla. Feb. 12, 2008) (declining to apply equitable estoppel against defendant employer where plaintiff had a general knowledge of rights and opportunity to obtain additional knowledge in part through readily accessible information on EEOC’s website). Finally, Houser’s constructive knowledge of the forty-five day time limit is further enhanced by the fact that she had previously worked for the Census Bureau in 1990, and she was admittedly familiar with the Bureau’s hiring practices. According to her Complaint, while a Census employee in 1990, Houser was “involved in hiring,” including “interviewing candidates” and “speaking with job applicants on the telephone.” See Compl, ¶ 30.4
4 In isolated instances with facts inapposite to those presented here, courts have found that applicants did not have constructive notice of the deadline for EEO counselor contact even where the federal agency posted notices. See, e.g., Gilbert v. Tisch, No. 86 Civ. 3933, 1987 WL 14908, at *3 (S.D.N.Y. July 21,1987) (finding “presence of posters at an application site can serve as constructive notice of EEOC’s timing requirements,” but refusing to hold “as a matter of law plaintiff was actually aware of the thirty day requirements solely by virtue of such posted notices” in light of Postal Service’s “emerging pattern of not only failing to act on [his] applications, but actually losing all record of them . . .”); Johnson v. Runyon, 47 F.3d 911, 91920 (7th Cir. 1995) (reversing grant of summary judgment for defendant USPS where applicant
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For these reasons, the Court should find that Houser was on constructive notice of the 45day requirement to contact an EEO counselor, and she failed to timely exhaust her administrative remedies.
E. Houser is Not Entitled to Equitable Tolling or Estoppel Nor can Houser avoid dismissal of her Complaint by invoking the doctrine of equitable tolling or equitable estoppel. The Second Circuit has previously stated that the forty-five day requirement is subject to equitable tolling - but only in very narrow circumstances. See Boos, 201 F.3d at 184. Such tolling should be granted only in “rare and exceptional” circumstances. See Moultrie v. Potter, No. 04 Civ. 6887, 2006 WL 1495234, at *6 (S.D.N.Y. May 31, 2006); Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985). Moreover, the “burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff.” Boos, 201 F.3d at 185. Houser provided no evidence or argument at the administrative level concerning why she should be entitled to equitable tolling of the 45-day period. Likewise, the doctrine of equitable estoppel does not apply to this case. “[E]quitable estoppel is raised in cases where the plaintiff knew of a potential cause of action but delayed bringing it because of the defendant's conduct.” German, 88 F. Supp. 2d at 222 (citation omitted). Such conduct can include a misrepresentation by the employer regarding the length of the limitations period or an employer's assurance that it is unnecessary for the plaintiff to commence the litigation. Id. Houser has not alleged that Census acted in any way to induce the
did not spend time in administrative or personnel offices where notices were posted, and poster erroneously stated she only had thirty days to contact EEO officer, rather than forty-five days). Those cases are distinguishable from the present case, because Houser spent at least an hour in the testing site where it was Census’s practice to prominently display the poster that accurately presented the EEO contact requirement, Census’s website contained information regarding the EEO process and the 45-day requirement, and Houser had previously worked for the Census.
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plaintiff to delay seeking EEO counseling. See Judge, 172 F. Supp. 2d at 414. Moreover, Houser’s argument at the administrative level that she did not realize that her
failure to be hired might be race discrimination until her attorney suggested it to her is not persuasive. See EEOC File at USA0216. The timing of Houser’s subjective belief that she was discriminated against is not the event that triggers the 45-day period for purposes of 29 C.F.R. § 1614.105(a)(1). Instead, “[t]he time period for contacting the EEO counselor begins to run from the date of the discrete employment action alleged to be discriminatory, not from the date of discovery of improper motivation.” Fausto v. Reno, 955 F. Supp. 286, 292 (S.D.N.Y. 1997) (“The law is clear that the tolling exception . . . does not apply where, as here, the complainant was aware of the adverse employment action taken against him, but was arguably unaware, until a later time, of any discriminatory animus that may have motivated the action. Once an adverse employment action is taken against a complainant, a plaintiff is on notice and has an obligation to investigate further in order to safeguard his rights.”) (quotations omitted); see also Holdmeyer v. Veneman, 321 F. Supp. 2d 374, 381 (D. Conn. 2004) (dismissing claim as untimely because date when plaintiff learned that deciding official was of a different race and plaintiff developed subjective belief that he was discriminated against is not relevant triggering date for 45-day rule); Dillard v. Runyon, 928 F. Supp. 1316, 1327 (S.D.N.Y 1996) (dismissing claim under 45-day rule because plaintiff's “subjective belief” about when she was required to contact EEO counselor “does not trigger equitable tolling”).
Accordingly, Houser is not entitled to any tolling of the 45-day time limit and her Complaint should be dismissed for failure to timely exhaust administrative remedies.
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POINT II EVEN IF HOUSER HAD TIMELY EXHAUSTED HER INDIVIDUAL ADMINISTRATIVE REMEDIES, THE COMPLAINT’S CLASS ALLEGATIONS
MUST BE DISMISSED A. Houser Did Not File a Class Administrative Complaint
The allegations of the Complaint purportedly brought on behalf of a class should be dismissed because Houser’s EEO charge was filed only on behalf of herself, and therefore does not exhaust the administrative remedies as required to support a class action against the government in a federal employment case. In order for a federal employee or applicant for employment at a federal agency to institute a class action against a federal agency in district court, she must first exhaust the available administrative remedies on behalf of the class. Downes v. Adams, No. 81 Civ. 61, 1982 WL 31035 (E.D.N.Y. May 12, 1982). Because Houser failed to raise any class claims in her individual EEO complaint and failed to move for class certification during the administrative process, the Court should dismiss the class allegations in the Complaint.
The Code of Federal Regulations provides that an “applicant who wishes to file a class complaint must seek counseling” in accordance with the federal regulations, and “may move for class certification at any reasonable point in the [administrative] process when it becomes apparent that there are class implications to the claim raised in an individual complaint.” 29 C.F.R. § 1614.204(b). The federal regulation prescribes that:
a class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) The class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) There are questions of fact common to the class; (iii) The claims of the agent of the class are typical of the claims of the class; (iv) The agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class.
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29 C.F.R. § 1614.204(a)(2). The federal regulation also prescribes that the “administrative judge shall deny class certification when the complainant has unduly delayed in moving for certification.” 29 C.F.R. § 1614.204(b).
The federal regulations are designed to put the federal agency on notice of the allegedly class-wide discrimination and provide the agency with an opportunity to remedy the problem regarding the class on an informal basis. Courts in this Circuit have thus recognized that “the appropriate place for a class claim of discrimination to be aired, at least in the first instance, is at the administrative level, and not the district court.” Downes, 1982 WL 31035 (E.D.N.Y. May 19, 1982); cf. Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir. 1996) (finding when federal agency is defendant in a class action, “[p]arties are generally required to exhaust their administrative remedies, in part because of concerns for separation of powers (i.e., the need to limit judicial interference in the agency process) and the need to conserve judicial resources.”).
Courts within and outside this Circuit have routinely dismissed Title VII class claims brought against federal agencies when the complainant filed an individual administrative complaint but failed to comply with 29 C.F.R. § 1614.204 by filing a class complaint at the administrative level. See Downes, 1982 WL 31035 (dismissing class action elements of complaint and finding that “the few cases on this issue unanimously require that the class action administrative procedures be exhausted as a condition to the certification of a federal class action”) (collecting cases); see also McKnight v. Gates, 282 Fed. Appx. 394, 2008 WL 2491626, at *3 (6th Cir. June 23, 2008) (affirming dismissal of ADEA claims because plaintiff was “attempt[ing] to evade EEOC requirements by transforming an individual action into a class action. . . [and] the EEOC has promulgated specific guidelines for the filing and
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presentation of class complaints that, under [plaintiff’s] reading of the ‘scope of the charge’ rule, would be rendered meaningless”) (internal quotations omitted); Murphy v. West, No. 982308, 1999 WL 64284, at *3 (4th Cir. Feb.11, 1999) (“[P]rior complaints filed by individual class members and the exhaustion of individual administrative remedies are not sufficient to satisfy the exhaustion requirements for a class action suit.”); Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997) (affirming dismissal of class claim; “[a] federal employee must exhaust his class action claim with the EEOC before raising it in federal court, and exhaustion of an individual Title VII claim is not sufficient to exhaust a class action claim.”) (citing Gulley v. Orr, 905 F.2d 1383, 1385 (10th Cir. 1990)); International Union v. Clark, No. 02-1484, 2006 WL 2687005, at *6 (D.D.C. Sept. 12, 2006) (dismissing motion for class certification where proposed class representatives had not filed an administrative complaint); Riley v. Potter, No. 08-5167, 2010 WL 125841, at *3-*4 (D.N.J. Jan. 7, 2010)(dismissing class claim for failure to exhaust because individual claims do not exhaust class claims); McKenzie v. Principi, No. Civ. A. 01-0221, 2001 WL 1005931, at *1 (E.D. La. Aug. 29, 2001) (same).
Despite failing to file a class action administrative complaint, plaintiffs’ federal Complaint in this Court (1) purports to sue on behalf of a sweeping class of persons who applied for employment with the United States Census Bureau, see D.Ct. Compl. ¶ 9, (2) asserts extensive class action allegations, see id. ¶¶ 50-56, and (3) seeks relief on behalf of the putative class as well as herself, see id. ¶¶ 58-70.
Accordingly, because Houser failed to exhaust administrative remedies in compliance with 29 C.F.R. § 1614.204 and during the administrative process did not put the Census Bureau on notice by filing a class action complaint or moving for class certification, the Court should
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dismiss all allegations in the Complaint made on behalf of a class. B. Even If Houser’s EEO Complaint Had Been Filed on Behalf of a Class, It Would Not
Encompass the Broad Class Allegations in the Federal Complaint Even if Houser had filed a class action administrative complaint alleging that she was pursuing her action on behalf of a class (which she indisputably did not), the scope of the class action allegations viable in this Court would have been much narrower than those included in plaintiffs’ Complaint. In plaintiffs’ Complaint, the purported class is alleged to include: All African American, Latino, and Native American persons who applied for temporary employment with the United States Census Bureau for positions including but not limited to Census Takers (also known as Enumerators), Census Crew Leaders, Recruiting Assistants, and/or Clerks, who were sent a 30-day notice to produce official court documentation or fingerprints, for whom there is no record of conviction (excluding those with charges pending at the time of application), or who are otherwise suitable for employment based on the Census Bureau's criminal background exclusion factors, and who were not hired by the Census Bureau, between the commencement of temporary hiring for the 2010 census and the date of judgment in this action. See D.Ct. Compl. ¶ 9. As described in section II(A), supra, Houser did not file a class administrative complaint and only filed an individual administrative complaint. Thus, she has broadened the allegations she seeks to assert for a class beyond her individual circumstances in several key respects. Most importantly, her focus on all individuals who “were not hired by the Census Bureau” sweeps in a large group of people who are not like her at all because they were not hired for reasons having nothing to do with the process that allegedly impacted Houser. In fact, her only allegations at the administrative stage revolved around her failure to provide the Census Bureau with necessary information upon which to continue processing her application for employment. These are far narrower circumstances than what is alleged in her class Complaint to this Court.
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Plaintiffs’ Complaint asserts extremely broad class allegations that have no correlation to Houser’s experience or allegations in her individual administrative complaint. As established in her EEO file, Houser’s application for employment at Census was rejected because she untimely and improperly responded to the 30-day letter sent to her on May 21, 2009. See EEOC File at USA0123. In plaintiffs’ Complaint, the class action allegations include putative members of the class who (1) “were deterred from complying with the 30-day letter and did not respond to it” or (2) “responded to the 30-day letter (regardless of whether the response was ultimately deemed adequate or timely), and who were denied employment or have not been given a final response to their application.” See D.Ct. Compl. ¶ 50. This broad allegation includes several categories of applicants who are not similarly situated to Houser: (i) people who did not respond to a 30-day letter; (ii) people who timely and adequately responded to the 30-day letter and were denied employment based on Census’s adjudication process, which found their criminal history records rendered them inappropriate for employment; (iii) people who timely and adequately responded to the 30-day letter but who have not been finally adjudicated by Census’s adjudication process; and (iv) people who timely and adequately responded to the 30-day letter but who have not received a determination regarding their application of employment, including because they were found eligible for employment by Census’s adjudication process but who remain in a large pool of eligible applicants who have not been selected for employment. Ms. Houser’s suitability for employment with the decennial census based on her criminal record has never been adjudicated, yet she is attempting to represent those whose applications and criminal records were in fact reviewed and who were not hired. She was not selected for employment because she never progressed beyond the 30-day letter process due to her untimely and incorrect response to the
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30-day letter. See EEOC File at USA0123. Accordingly, Houser never progressed to the stage where Census made an active decision on her application or utilized the adjudication criteria to deny her employment. Neither Houser’s experience, nor her individual administrative complaint, reasonably relates to the above four categories of applicants. Therefore, based on Houser’s administrative charge, the agency would not have been put on notice and therefore could not “reasonably have investigated” any of these categories of applicants’ allegations of discrimination.
Accordingly, such claims would be subject to dismissal even had Houser filed a class administrative complaint rather than an individual complaint. See McClain v. Lufkin Indus., 519 F.3d 264, 275 (5th Cir. 2008) (dismissing class claims for discriminatory assignment of new Foundry division employees because “EEOC would not reasonably have investigated” such claims based on administrative charges); Ulvin v. Northwestern Nat’l Life Ins. Co., 943 F.2d 862, 865-66 (8th Cir. 1991) (affirming dismissal of discrimination claims of early retirees, holding claims beyond scope of named plaintiff’s class-wide EEOC charge regarding demotion and termination based on age discrimination, such that filed EEOC charge would not alert employer to early retirees’ claims); Vuyanich v. Republic Nat’l Bank of Dallas, 723 F.2d 1195, 1200 (5th Cir. 1984) (finding plaintiffs lacked standing to assert broad class claims because named plaintiff “cannot bootstrap the court’s jurisdiction to encompass claims regarding practices broader than the hiring and termination claims properly assertable by the named plaintiffs”); Contrares v. Ridge, 305 F. Supp. 2d 126, 134 (D.D.C. 2004) (dismissing class claims of harassment/hostile work environment and foreign language proficiency awards which, unlike other class claims, had not been administratively exhausted); cf. Holowecki v. Federal Express
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Corp., 644 F. Supp. 2d 338, 350-51 (S.D.N.Y. 2009) (dismissing certain plaintiffs’ allegations and denying “piggybacking of claims where they did not arise out of similar discriminatory treatment in the same time frame); Debose v. Fedex Corp., No. 08 Civ. 07042, 2009 WL 1542572, at *1-*2 (S.D.N.Y. June 2, 2009) (dismissing class claims where administrative charges were “highly individualized” and defendant could not reasonably have been alerted to possibility that other suffered similar discrimination).
Plaintiffs’ Complaint raises issues that were not addressed in Houser’s EEO complaint and so would not reasonably have been investigated by the Census Bureau. Specifically, plaintiffs’ Complaint alleges that compliance with the 30-day letter was impossible for many applicants whose records were expunged or sealed, see D.Ct. Compl. ¶ 42, and unduly burdensome for other applicants who are unfamiliar with how to obtain their court records, D.Ct. Compl. ¶ 43-44. These allegations are significantly different from those raised in Houser’s administrative complaint, and from the facts that form the basis for that complaint, and potentially create new classes of individuals whose claims bear little resemblance to Houser’s. Additionally, Houser’s administrative complaint made no references to any impact on Latino or Native Americans allegedly caused by the Census’s procedures. Her administrative complaint could not have put the defendant on notice that any practice had a disparate impact on those groups. Therefore, even had Houser filed a class administrative complaint, all of these purported class claims should still be dismissed. See McClain, 519 F.3d at 275; Ulvin, 943 F.2d at 865-66; Contrares, 305 F. Supp. 2d at 134.
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POINT III JOHNSON FAILED TO EXHAUST ADMINISTRATIVE REMEDIES AND SHOULD
NOT BE PERMITTED TO “PIGGYBACK” IN FEDERAL COURT A. Johnson Failed to File an EEO Complaint
There can be no dispute that Johnson failed to contact an EEO counselor or file an administrative complaint alleging discrimination against Census. The Complaint in this action does not allege that Johnson exhausted his administrative remedies, and the agency’s files do not reflect any administrative filing by Johnson. See Anderson Dec. ¶¶ 5, 6. Indeed, Johnson’s application for employment with Census was never rejected. See D.Ct. Compl. ¶ 28. Accordingly, unlike Houser, there has been no agency decision denying Johnson’s application for employment. B. Johnson Cannot “Piggyback” on Houser’s Individual EEO Complaint
Plaintiffs may argue that Johnson’s claims should be allowed to proceed despite his failure to exhaust his administrative remedies because he should be permitted to “piggyback” on the EEO charge filed by Houser. While a plaintiff may take advantage of the “single filing rule” in certain circumstances, it is only appropriate when the piggybacking plaintiff’s “individual claims arise out of similar discriminatory treatment in the same time frame” as the plaintiff who timely exhausted their administrative remedies. Holowecki, 644 F. Supp. 2d at 350 (quoting Snell v. Suffolk County, 782 F.2d 1094, 1100 (2d Cir. 1986)).
First, Johnson cannot piggyback on Houser’s case because Houser herself did not file a timely administrative complaint. See Point I, supra. In addition, Johnson cannot satisfy the single filing rule because, unlike Houser, his application for employment was not rejected by Census. See D.Ct. Compl. ¶ 28. As described in Point II(B), supra, Houser’s application for
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employment was rejected because she failed to respond timely and properly to Census’s 30-day letter. Johnson, on the other hand, did timely respond to Census’s 30-day letter, see D.Ct. Compl. ¶ 27, and he has not been rejected for employment. See D.Ct. Compl. ¶ 28. Accordingly, Johnson’s claims are unrelated to the claims brought by Houser and cannot be deemed to “arise out of similar discriminatory treatment.” See Holowecki, 644 F. Supp. 2d at 350-51 (dismissing piggybacking plaintiffs’ claims finding they were “not ‘sufficiently similar’ to the facts underlying many of the named plaintiffs’ claims”); see also Spector v. Bd. of Trustees of Community-Technical Colleges, No. 3:06-cv-129, 2007 WL 4800726, at *11 (D. Conn. Dec. 27, 2007) (rejecting single filing rule where filing plaintiff’s and piggybacking plaintiff’s “claims share some events in common, [but] the factual basis of their complaints are more different than alike”). Indeed, Johnson’s successful submission of a 30-day letter and the fact that his application was not rejected makes his claim unlike even the purported class claim, which asserts that minority applicants disproportionately were either deterred from responding to the 30-day letters or excluded from employment based on the eligibility criteria.
In Holowecki, the plaintiff who had exhausted administrative remedies complained of age discrimination, which resulted from his employer’s compensation system (BPP) and program of “Minimal Acceptable Performance Standards” (“MAPS”). Id. at 343. On summary judgment the court dismissed several plaintiffs who failed to exhaust, holding they could not piggyback on the exhausted claim because their claims did not “arise out of similar discriminatory treatment.” Id. at 351 (concluding that several other employees’ age discrimination complaints did not involve failure to meet BPP and MAPS requirements, and some specifically related instead to the company’s medical leave policy). Likewise here, Johnson and Houser’s claims arise out of
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entirely different facts: Census rejected Houser’s application because she did not properly respond to the 30-day letter, see D.Ct. Compl. ¶ 32, while Johnson has never been denied employment. Because plaintiffs’ grievances are the consequences of different actions taken by Census, Johnson should not be permitted to “piggyback” on Houser’s complaint.
McClain v. Lufkin Industries, Inc., 519 F.3d 264, 275 (5th Cir. 2008) is also instructive. In McClain, a class action suit alleging that Lufkin Industries discriminated on the basis of race, the Court vacated a damages and injunctive relief award based on assignments to the Foundry division of the company, where neither of the individual plaintiffs had worked in the Foundry division and neither plaintiff could or did complain to the EEOC about the division’s hiring practices. Id. Because of these facts, the Court was “persuaded that the EEOC would not reasonably have investigated discriminatory assignment of new Foundry division employees based on either McClaim or Thomas’s charge.” Id. The Court also noted that case law “raises considerable doubt that McClain and Thomas would have had standing to assert the class hiring claims of Foundry division workers.” Id., n.2.
Likewise here, Houser failed to properly respond to the allegedly discriminatory 30-day letter, whereas Johnson properly responded and has not been deemed ineligible for hire. Because the facts underlying their claims are so different, Johnson should not be permitted to piggyback on Houser’s claim. See also Ulvin v. Northwestern Nat’l Life Ins. Co., 943 F.2d 862, 865-66 (8th Cir. 1991) (dismissing some plaintiffs’ age discrimination claims made by early retirees as beyond scope of named plaintiff’s class-wide EEOC age discrimination charges where class plaintiff had not yet become eligible for retirement); Contrares, 305 F. Supp. 2d at 134 (dismissing claims of harassment/hostile work environment and foreign language proficiency
24

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 Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 1 of 43

OUTTEN & GOLDEN LLP
Adam T. Klein Justin M. Swartz Lewis M. Steel Ossai Miazad Amber C. Trzinski Sally J. Abrahamson** 3 Park Avenue, 29th Floor New York, NY 10016
COMMUNITY SERVICE SOCIETY
Judy Whiting Paul Keefe 105 East 22nd Street New York, NY 10010

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Ray P. McClain* Jane Dolkart* 1401 New York Ave., NW Washington, DC 20005
CENTER FOR CONSTITUTIONAL RIGHTS
Darius Charney 666 Broadway 7th Floor New York, NY 10012
INDIAN LAW RESOURCE CENTER
Robert T. Coulter* 602 North Ewing Street Helena, MT 59601

COMMUNITY LEGAL SERVICES, INC.
Sharon Dietrich* 1424 Chestnut Street Philadelphia, PA 19102

PUBLIC CITIZEN LITIGATION GROUP
Michael T. Kirkpatrick* 1600 20th St. NW Washington, DC 20009

LATINOJUSTICE PRLDEF
Jackson Chin 99 Hudson Street, 14th Floor New York, NY 10013

*Admitted pro hac vice
** Pro hac vice forthcoming

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

EVELYN HOUSER, ANTHONY GONZALEZ, IGNACIO RIESCO, PRECIOUS DANIELS, FELICIA RICKETT-SAMUELS, CHYNELL SCOTT, VIVIAN KARGBO, and SCOTTY DESPHY, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
REBECCA M. BLANK, Secretary, United States Department of Commerce,

10-cv-3105 (FM)
SECOND AMENDED CLASS ACTION COMPLAINT

Defendant.

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 2 of 43

Individual and Representative Plaintiffs Evelyn Houser, Anthony Gonzalez, Ignacio Riesco, Precious Daniels, Felicia Rickett-Samuels, Chynell Scott, Vivian Kargbo, and Scotty Desphy ("Plaintiffs"), individually and on behalf of all others similarly situated, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as

follows: SUMMARY OF THE CLAIM
1. The United States Census Bureau ("Census") hired over one million temporary workers to conduct the 2010 census in a manner that discriminated against over one hundred thousand African Americans and Latinos. Near the outset of this hiring program, the United States Equal Employment Opportunity Commission ("EEOC") informed Census officials that the method of screening out applicants based on criminal history data could well have a racially discriminatory impact in violation of Title VII of the Civil Rights Act, but Census failed to revise

its screening procedures to rectify the problem.

2.

Approximately 3.8 million people applied for temporary work with Census to help

complete the 2010 decennial count. As a precondition of employment, Census required nearly

all job applicants who have ever been anested to produce within 30 days the "official court

documentation" for any and all of their arrests -regardless of whether a conviction resulted, the

nature of the arrest, its relationship to the job, or when it took place. This requirement eliminated

93% of these applicants- roughly 700,000 people- from being considered for employment

during the 2010 census. Of the small percentage who were able to find and deliver this

documentation on time, Census next applied an arbitrary and irrational screen whereby even

those who had never been convicted, those who had their records officially expunged, and those

with very minor and old offenses were excluded from this civic undertaking. Indeed, less than

5% of applicants required to submit official court documentation ultimately were deemed eligible

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for hire. Moreover, numerous applicants who satisfied both the 30-day letter requirement and eligibility screen nonetheless were denied employment because virtually all available positions had been filled during the attendant delay. Because each of these employment practices, individually and collectively, has a significant adverse impact upon African Americans and Latinos (who are arrested and incarcerated at rates substantially higher than whites), and because these practices are neither job-related nor consistent with business necessity, they are unlawful under Title VII of the Civil Rights Act.
BACKGROUND OF THE LITIGATION 3. Plaintiffs Eugene Johnson and Evelyn Houser filed this class action on April 13, 2010. The Complaint challenged Census's requirement that applicants with any history of being arrested must produce their "official court documentation." At that time, Plaintiffs did not know that 93% of applicants with an arrest history were categorically excluded from consideration. Plaintiffs also did not know the actual standards applied by Census to analyze applicants' criminal background for the purpose of making final suitability determinations. Indeed, Census had kept that information a closely guarded secret for over a decade, refusing to tell applicants, the general public, or even Congress, which crimes in particular mandated exclusion or any other factors involved in the determination. 4. Through this litigation, Plaintiffs now know that the exclusionary effect of the "official comt documentation" requirement is enormous, and that by excluding 93% of applicants with a record of almost any arrest, this single device, combined with the application of Census's criminal-history screen and processing-time delay, operated very nearly as a "no arrest or conviction history allowed" policy for the 2010 decennial census. 5. This process, and the consequent wide-scale exclusion of applicants with criminal backgrounds, including nothing more than a single arrest without prosecution, is not new.
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Plaintiffs have learned that when Census hired temporary workers for the 2000 decennial census, it used the same background screening process as it used for the 2010 census, with a similar massive exclusionary effect. Following the 2000 census, and again in 2010, Census failed to analyze the reasons for this exclusion and the discriminatory racial and ethnic impact of its

practices. 6. This litigation also has forced Census, for the first time ever, to divulge its
criminal background screening criteria. As discussed further below, the records and testimony produced pursuant to court order reveal that the criteria are arbitrarily drawn and dramatically over-inclusive, automatically excluding many people who present no threat to the public or to the integrity of the process. In the limited areas where the criteria allowed for discretion, Census officials inconsistently applied ad hoc standards, unguided by professional principles or social

science, and based largely on gut instinct.

7.

Plaintiffs also have learned that in a detailed letter on July 10, 2009, the EEOC

criticized Census for the racially discriminatory impact of its criminal background policy, and

notified Defendant that its practice may "run afoul" of Title VII of the Civil Rights Act. In

addition, Plaintiffs have learned that other individuals filed formal Equal Employment

Opportunity ("EEO") complaints with the Department of Commerce, putting Defendant on notice

of class-wide discrimination resulting from Census's criminal background policy as early as

October 2008.

8.

On August 5, 2010, Plaintiffs filed a First Amended Class Complaint, adding the

newly acquired information and five new class representatives. This Second Amended Complaint

adds three additional class representatives with exhausted administrative complaints in compliance

with the Class Regulations for federal sector employees and makes other modifications responsive

to the Court's Decision and Order of March 15, 2011 and March 22, 2012.

3

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 5 of 43
FACTUAL BACKGROUND
9. The United States Constitution requires the federal government to conduct a census of the entire population every ten years. The work conducted by Census -which had a $14 billion budget for the 2010 count- forms a cornerstone of our democracy, serving as the basis for determining representation in the House of Representatives, informing the drawing of voting districts, and allocating substantial amounts of federal funding. It is imperative for all individuals and communities that the work of the Census be done accurately and in a manner that is fair and free of discrimination.
10. This imperative must apply not only to the counting work at the core of Census's mission, but also to the way in which Census hires its workforce. Had its hiring been done appropriately, Census would have identified the most qualified workers and screened out those who posed a legitimate risk to public safety and the integrity of the census. Unfortunately, it did not do so.
A. The Hiring Process 11. Temporary employment for the 2010 decennial census involved two types of positions. Census Takers (also known as Enumerators), Census Crew Leaders, and Recruiting Assistants were responsible for conducting the door-to-door count and interacted directly with the public. Others, including Clerks, were engaged in office work, and had no personal interaction with the public. Despite the differences between these two types of positions with respect to public interaction, Census subjected all applicants to the same criminal background check process and standards. 12. Each applicant took a written test and completed an application, which included a question as to whether the individual had been convicted of a crime within the past 10 years. Census then ran each applicant's name and other personal identifiers through the Federal Bureau
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of Investigation ("FBI") Criminal Justice Information Services Division's Name Index (the "FBI database"), which searches for all arrests, regardless of whether a conviction resulted, and has no time limitation (including juvenile arrests). If an arrest record appeared, the Census procedure was to send a form letter to nearly all such applicants, requiring that these applicants produce the "official court documentation" of all arrests to remain eligible for employment, even in instances where an individual's FBI record showed no disqualifying criminal activity. The form letter gave applicants less than 30 days after receiving the notification (the "30-day letter") to fully comply. To those few who managed to timely provide "official court documentation," Census applied an "adjudication" screen to eliminate applicants it considered unsuitable for employment. The process of satisfying the requirements of the 30-day letter and then being subjected to the adjudication screen took months to complete, and many applicants simply never heard any response from Census whatsoever. For many otherwise qualified applicants, the attendant time delay was tantamount to a denial of employment.
1. The FBI Background Check 13. The FBI database from which Census drew its arrest and criminal records information is enormous. Law enforcement agencies across the United States arrest approximately 14 million people per year, transmitting fingerprint records for those charged with crimes to the FBI database. Over 70 million people in the country, well over 20% of the adult population, have a criminal record. Virtually all of these arrest records remain in the FBI database forever. 14. As Census knows well, and as reported by the U.S. Department of Justice's Bureau of Justice Statistics, the FBI database is missing final disposition information for roughly half of all of its arrest records. This has a clear negative effect for the millions of people whose
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entire criminal history consists of having been arrested and fingerprinted, but never convicted. 1 These quick releases may occur when the police pick up the wrong person, lack evidence to prosecute, or determine that someone made a false crime report. In still other cases, upon review of the facts the district attorney declines to prosecute cases forwarded them by the police. Indeed, the total number of prosecutorial declinations on an annual basis is over half a million nationwide. Many people will have been over-charged, only to plead to or be found guilty of a lesser (sometimes non-criminal) offense. Others in the FBI database have actually gone to trial and been found not guilty by a jury of their peers, yet even these individuals may have no record in the database of that favorable disposition.
2. The 30-Day Letter 15. Nearly all applicants whose name matched a record in the FBI database were sent the 30-day letter, whether or not they applied to work in a position with direct public contact. The letter states: A. If you do not dispute the identity of the arrest record in question, provide OFFICIAL
COURT documentation on any and all arrest(s) and/or conviction(s) in your past; B. If you wish to dispute the identity of the arrest record in question, you may provide a
set of original fingerprints ... If you send a fingerprint card that shows a match with criminal history record in question, and you did not provide the requested court documentation, you will be made ineligible for hire... For your application to remain active, you must return all documents within 30 days of the date appearing above. (A copy of this letter is attached as Exhibit A). 16. Measured by the Census's stated policy of considering only a conviction or pending charge "that affects hiring eligibility," the 30-day letter had two critical flaws: (a) it screened out applicants who had arrests but no convictions, and (b) it required documentation, at a significant cost of money and time to the applicant, of "any and all" arrests, even where the 1 For example, in the State of New York more than 200,000 people per year who are arrested are never convicted of any crime or offense.
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Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 8 of 43
charges were no longer pending and there had been no conviction. 17. The 30-day letter placed a substantial burden on applicants who have been
arrested but never convicted. While their FBI records-even if assumed to be 100% true-would not exclude them under well-established legal precedent barring the use of arrest-only records, the difficulty, and often impossibility, of obtaining such proof deterred and outright excluded many individual class members from working for Census. Many of these arrests were for petty offenses and citations below the level of misdemeanors. The law is quite clear that Census cannot disqualify applicants based on arrest charges alone (unless the charge is pending, in which case a conviction may still result).2 The federal government recognizes that restrictions on hiring individuals on the basis of arrest records are discriminatory and illegal. The 1990 EEOC Policy Guidance ("EEOC Arrest Guidance") on the use of arrest records for employment decisions states: "[A]rrests alone are not reliable evidence that a person has actually committed a crime." The Guidance relies upon the Supreme Court decision in Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957), which held that "[t]he mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct." The EEOC Arrest Guidance goes on to address the precise situation presented in this case: "Even where there is no direct evidence that an employer used an arrest record in an employment decision, a preemployment inquiry regarding arrest records may violate Title VII. It is generally presumed that an employer only asks questions which he/she deems relevant to the employment decision." Additionally, the Department of Justice recognizes that it is improper to stigmatize arrestees as criminals, and considers any arrest without disposition, where one year or more has elapsed from
2 By contrast, according to the background check policy of the U.S. Postal Service: "No inquiries may be made, either orally or in writing, of the applicant or of any other person, concerning arrest records, except where the arrest resulted in a criminal conviction, or where the charges are still pending." United States Postal Service, Employment and Placement Handbook EL-312, Sept. 2001, Updated with Postal Bulletin Revisions Through October 25, 2007, p. 108 ("Postal Handbook").
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the date of arrest with no active prosecution of the charge, to be a "nonconviction." 28 C.F.R. Ch. I,§ 20.3(q). The 30-day letter screen also violated the Department of Justice's directive disapproving any employer policy that requests that applicants obtain official certification of no criminal record. 28 C.F.R. Ch. I,§ 20.21(c)(2), pp. 414, 421.
18. In addition, the 30-day letter unfairly deterred or excluded many people with old and minor convictions for non-criminal offenses, misdemeanors, and other crimes that did not involve violence or dishonesty, and which bear no relationship to fieldwork or office clerical assignments. Thus, Census required applicants to provide official documentation even when the charge revealed in the FBI database, and any conviction thereon, was irrelevant to the requirements of the job.
19. The 30-day letter also failed to identify for the applicant the purported criminal activity found in the FBI database search that was the basis for Census's concern, thereby sending the applicant on an often futile exploration for records of any police interaction in their past. The older and less serious those records, the more difficult such records generally are to find, placing a greater burden on those applicants-like some of the named Plaintiffs in this suit-whose history least approximates actual risk. Indeed, some of the records that are impossible, or most difficult, to locate are of arrests that were never prosecuted. It is impossible for an individual who was merely arrested any number of years ago to provide "official court documentation" when the matter never went to court. In other words, Census demanded that many applicants prove a non-event in order to advance in the hiring application process.
20. Census knew full well when it began planning for the 2010 count that the 30-day letter would effectively eliminate the vast majority of applicants with any arrest history from the ranks of its temporary workers. Census used the same screening process for the 2000 decennial census count, and had the same non-response rate of approximately 93%. Census planned for the
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30-day letter to have the same exclusionary effect in 2010, and therefore provided scant staffing and resources for its CHEC ("Census Hiring and Employment Check") office on the expectation that there would be little to check.
21. The number of class members who have been effectively denied temporary employment by Census due to the use of the 30-day letter alone is staggering. Because over 35% of all arrests nationwide never lead to prosecution or conviction, the raw number of excluded individuals from the 2010 decennial census hiring process who have done nothing more than get arrested at some point in their life is likely in the hundreds of thousands. Adding those with minor and old convictions that are irrelevant to these jobs, it is reasonable to estimate that roughly half a million people who should have been made eligible were prevented from being considered for employment by this single practice.
3. Census's Suitability Policy 22. For over a decade, the actual test used by Census to determine each applicant's suitability based on criminal history had been carefully concealed from public view. Census refused to tell applicants, the general public, or even Congress, which crimes in particular mandate exclusion; whether there is any temporal limitation, including whether juvenile records can be considered; whether any distinction is made between non-criminal offenses, misdemeanors, and felonies; and any other factors it deems relevant to the determination. 23. The records and testimony in this litigation now reveal that the criteria are dramatically over-inclusive, so that Census excluded many people who presented no threat to the public or to the integrity of the process. Census documents identify its interest in conducting the criminal background screen as preventing "risk to public safety or data integrity." Yet Census applied an irrational, overbroad "adjudication" screen to the small percentage of applicants who were able to decipher and comply with the requirement to provide "official court
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documentation," failing to limit exclusion to those who presented a legitimate risk to the safety of the public or the integrity of the counting process.
24. Pursuant to the adjudication criteria, Census rejected applicants for nearly all felonies, even if decades old, even if committed as a juvenile, and even where the case was expunged or dismissed through deferred adjudication, probation, or similar diversion programs. Census also required exclusion for most misdemeanors, except the most minor offenses such as "abusive language" or "liquor possession by a minor."
25. These adjudication guidelines and practices changed in arbitrary fashion over the course of the hiring process, failing in each iteration to limit exclusion to those who present a legitimate risk to the safety of the public or the integrity of the counting process. For example, Census changed its screening policy in February 2010 to exclude applicants with pending charges for certain minor misdemeanors, even where an individual with a recent conviction for the exact same charge would be eligible for hire. When the criteria were changed to become less stringent, applicants who had been previously excluded but who would be eligible under the revised criteria were not notified or granted reconsideration.
26. Additionally, where the criteria allow for discretion, Census officials employed ad hoc and inconsistent standards, unguided by professional principles or social science, and based largely on gut instinct, which inherently includes the bias of the decision-maker.3 The unprofessional nature of this enterprise is exhibited in a training document for CHEC analysts with the following "Reminders": "Defer anything you feel strongly about and/or can't make an
3 By contrast, over a recent 2 Yz year period, the Transportation Security Administration ("TSA")
screened the FBI records of about 1.6 million port workers pursuant to the Maritime Transpmtation Security Act of 2002. During that time, at least 60% of the employee petitions to "waive" their disqualifying felony offense based on evidence of rehabilitation were granted by TSA, resulting in nearly 5,000 workers getting hired who otherwise would have lost their opportunity for this work. Department of Homeland Security, TWIC Dashboard.
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Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 12 of 43
unbiased decision" and "Don't be afraid to ask for help- ask your roommates, colleagues or the CHEC Staff."
27. Even those applicants who passed through the adjudication process and were told to report for work were subject to further screening, as Census required all new hires to be fingerprinted. Census then conducted a second FBI background check using those fingerprints, and again applied its "adjudication" screen, sometimes even after the individual had begun work.
28. No one who was excluded from hire was offered the right to appeal the decision to the CHEC office. For those applicants who nonetheless took it upon themselves to challenge the decision, Census applied a standardless ad hoc review process. In fact, the Chief of the CHEC office is not aware of a single job denial being reversed through appeal.
4. Denial by Delay 29. Even among those who passed the "adjudication" screen and were ultimately deemed "eligible for hire," many did not have any real chance of being hired because of the months of delay created by the unnecessary 30-day letter process. Many such applicants who applied well before the bulk of hiring took place in the spring and summer of 2010, and who, on the face of their records, do not pose a threat to public safety or the integrity of the count, were found "eligible" after virtually all hiring had been completed. Since at least early June 2010, Census was explicit in telling these applicants: "Please be aware that most temporary Census jobs are now filled and major census operations are nearing completion or are already completed." B. Discriminatory Impact 30. Census's use of these arbitrary pre-employment screens was not only unfair, it also resulted in discrimination on the basis of race, ethnicity, color, and national origin. Because the arrest and conviction rates of African Americans and Latinos far exceed those of whites nationwide, the arbitrary use of criminal history in employee selection imports these racial and
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Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 13 of 43
ethnic disparities into the employment process.4 Thus, Plaintiffs bring this class action suit pursuant to Title VII of the Civil Rights Act of 1964, which provides: "All personnel actions affecting ... applicants for employment ... in executive agencies [of the federal government] shall be made free from any discrimination based on race, color ... or national origin." 42 U.S.C.
§ 2000e-16(a). 31. Since at least the 2000 decennial census, the Secretary of Commerce and other
government officials have known, or should have known, that Census's criminal background screening devices exclude from consideration hundreds of thousands of applicants, and that this exclusion disproportionately affects African Americans and Latinos.
32. Unfortunately, Census's hiring process not only discriminated against hundreds of thousands of individuals seeking to serve the public interest, but also undermined its own stated goal of reducing the historic under-count in communities of color. Through this lawsuit, Plaintiffs seek both to end Census's discriminatory hiring practices and to improve its ability to achieve its constitutionally mandated goal of counting all who live in the United States.
CLASS DEFINITION 33. Plaintiffs bring this case as a class action under Federal Rules of Civil Procedure 23(a) and (b), on behalf of the following class: All African American and Latino persons who applied for temporary employment with the United States Census Bureau, who, under Defendant's criminal records policy, were sent a 30-day notice to produce official court documentation or fingerprints, and who were thereafter barred from employment, between the commencement of the temporary employment application process for the 2010 decennial census and the date of judgment
4 The President of the National District Attorneys Association has told prosecutors that they "must comprehend this full range of consequences that flow from a crucial conviction" and asked: "[h]ow can we ignore a consequence of our prosecution that we know will surely be imposed by the operation of law? These collateral consequences are simply a new form of mandated sentences." R. Johnson, Message from the President, Collateral Consequences, The Prosecutor (May/June 2001).
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in this action ("the Class"). JURISDICTION AND VENUE
34. The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(4), as this claim arose under the Constitution and laws of the United States, and under § 717 of Title VII, 42 U.S.C. § 2000e et seq.
35. Venue is proper in this Court pursuant to 42 U.S. C. § 2000e-5(f)(3), because Defendant's unlawful employment practice was committed in Manhattan, employment records relevant to Defendant's illegal actions are maintained and administered in New York City.
EXHAUSTION OF ADMINISTRATIVE REQUIREMENTS 36. On August 10, 2009, Plaintiff Evelyn Houser filed an Informal EEO Complaint based on her denial of temporary employment with Census. Ms. Houser explicitly challenged the policy employed by Census of excluding applicants with criminal history as having a racially disparate impact in violation of Title VII, and included in her complaint references to the three EEOC Guidance statements bearing on the use of arrest and criminal conviction records in employment. On August 28, 2009, Ms. Houser filed a timely written Charge of Discrimination with the Equal Employment Opportunity Office of the Department of Commerce ("EEO Office"). On September 29, 2009, the EEO Office rejected that charge by issuing a Final Agency Decision dismissing Ms. Houser's complaint. Ms. Houser appealed that decision to the Office of Federal Operations of the EEOC. The EEOC issued a decision on January 29, 2010, which Ms. Houser received on or about February 1, 2010. The EEOC's decision explicitly provided that Ms. Houser had the right to file a civil action in federal District Court within ninety calendar days from the receipt of the decision. This action was filed on April 13, 2010, within the required time limits.
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37. Plaintiff Felicia Rickett-Samuels filed an informal charge of discrimination against the Census Bureau on February 25, 2010. On March 18, 2010 she received a notice of right to file a formal complaint. Ms. Rickett-Samuels filed a formal complaint with the EEO Office on March 30, 2010. On May 13, 2010, Mr. Rickett-Samuels filed an amended formal complaint with the EEO office, adding class allegations in compliance with 29 C.F.R. § 1614.204. Ms. Rickett-Samuels explicitly challenged the Census Bureau's policy and practice of failing to hire applicants with prior arrests and/or criminal convictions, alleging that such policy and practice has a disparate impact on African Americans and Latinos. More than 180 days have passed since the filing of Ms. Rickett-Samuel' s formal class complaint, and Defendant has not taken final action. Therefore, pursuant to 29 C.F.R. § 1614.407(b), Ms. Rickett-Samuels has the right to participate in this action as a class representative.
38. On April 9, 2010, Plaintiff Chynell Scott filed a formal EEO class complaint of discrimination based on Census's denial of her application for temporary employment. Ms. Scott explicitly challenged the Census Bureau's policy and practice of failing to hire applicants with prior arrests and/or criminal convictions, alleging that such policy and practice has a disparate impact on African Americans and Latinos. Ms. Scott's complaint was brought on a class-wide basis pursuant to 29 C.F.R. § 1614.204. More than 180 days have passed since the filing of Ms. Scott's formal class complaint, and Defendant has not taken final action. Therefore, pursuant to 29 C.F.R. § 1614.407(b), Ms. Scott has the right to join this action as a class representative.
39. On April 18, 2010, Plaintiff Vivian Kargbo filed an informal charge of discrimination based on her denial of temporary employment with Census. On June 22, 2010, she received a notice of right to file a formal complaint. Ms. Kargbo filed a formal complaint with the EEO Office on June 24, 2010. Ms. Kargbo explicitly challenged the Census Bureau's policy and practice of failing to hire applicants with prior arrests and/or criminal convictions,
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alleging that such policy and practice has a disparate impact on African Americans and Latinos. Ms. Kargbo's complaint was brought on a class-wide basis pursuant to 29 C.P.R.§ 1614.204. More than 180 days have passed since the filing of Ms. Kargbo's formal class complaint, and Defendant has not taken final action. Therefore, pursuant to 29 C.P.R.§ 1614.407(b), Ms. Kargbo has the right to join this action as a class representative.
40. On April 1, 2010, Plaintiff Scotty Desphy contacted the EEO Office to make a complaint of racial discrimination. The EEO Office sent Ms. Desphy a notice of her right to file a formal complaint, which she received on April 28, 2010. Within 15 days of her receipt of that letter, on May 11, 2010, Ms. Desphy filed a formal EEO class complaint of discrimination based on Census's denial of her application for temporary employment. Ms. Desphy explicitly challenged the Census Bureau's policy and practice of failing to hire applicants with prior arrests and/or criminal convictions, alleging that such policy and practice has a disparate impact on African Americans and Latinos. Ms. Desphy's complaint was brought on a class-wide basis in full compliance with 29 C.P.R. § 1614.204. More than 180 days have passed since the filing of Ms. Desphy's formal class complaint, and Defendant has not taken final action. Therefore, pursuant to 29 C.F.R. § 1614.407(b), Ms. Desphy has the right to join this action as a class representative.
41. In addition, Defendant was on notice early in its hiring process, both from the EEOC and from other deterred and excluded applicants, of the class-wide discriminatory impact of Census's criminal background screening policy.
42. On July 10, 2009, one month prior to Ms. Houser's formal complaint, the Acting Chairman of the EEOC wrote a detailed four-page letter to the Secretary of the Department of Commerce and the Acting Director of the U.S. Census Bureau.
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43. Under Section 717 of Title VII, the EEOC has "authority to issue ... such orders and instructions as it deems necessary and appropriate" to fulfill its statutory obligation to ensure non-discrimination in all federal agencies. Further, "[t]he head of each such department, agency, or unit shall comply with such ... orders, and instructions." 42 U.S.C. § 2000e-16 (emphasis added).
44. The July 10, 2009 Jetter was sent explicitly under the EEOC's authority pursuant to Section 717 and stated that the EEOC was aware of reports of "numerous instances nationwide," in which Census told applicants that their record of an arrest or conviction would disqualify them unless shown to be incorrect, that the Census application states that adult convictions other than a minor traffic violation could be the basis for nonselection, and that "this information suggests that the Census Bureau's approach is overbroad and may run afoul of Title VII." The letter further informed the Secretary and Acting Director: "Unless there is a record that an arrest resulted in a conviction, an arrest in itself is not evidence that the person engaged in the conduct alleged. Therefore, without confirmation, the Census Bureau should not disqualify people based on an arrest record."
45. Regarding individuals with convictions, the EEOC went on to state that "[p]ursuant to longstanding EEOC policy guidance, when there is evidence of criminal conduct, objective evidence concerning three factors should be considered: The nature and gravity of the offense or conduct (including the circumstances surrounding the offense or conduct, and the number of offenses for which the individual was convicted); [t]he amount of time that has passed since the arrest or conviction and/or completion of the sentence; and [t]he nature of the job held or sought."
46. The EEOC further noted that it had become aware of Census's use of the 30-day letter, and stated: "this practice is inconsistent with Census Bureau's obligation under Title VII,
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to objectively assess whether the applicant or employee in fact engaged in the conduct alleged." Additionally, the EEOC stated that "the Census Bureau should not exclude people from employment for offenses that do not predict an unacceptable risk."
47. Defendant also was on notice of the class-wide discriminatory impact of Census's criminal background screening policy since the very outset of the 2010 decennial hiring process through the EEO complaints of deterred and excluded applicants other than Ms. Houser. As early as October 2008, an African American applicant filed a formal charge of race discrimination, challenging Census's rejection of his application for temporary employment. His complaint states that his challenge was based on the "disparate and adverse impact" of Census's criminal background policy on him as a minority worker, noting his understanding that the policy has a "discriminatory impact on the protected class."
48. In August 2009, another African American applicant filed a formal complaint of class-wide discrimination, alleging that the "Census Bureau's policy and practice of using criminal conviction information to screen out candidates for hire is discriminatory in that it has a disparate impact on African Americans ... " The complaint specifically sought "class and individual injunctive, declaratory and monetary relief (back and front pay) and all other relief provided for under Title VII." The complaint also alleged intentional discrimination.
49. Additionally, between July 2009 and April2010, at least five other applicants of color filed formal charges of race discrimination based on Census's criminal background process.
50. Any and all other prerequisites to the filing of this suit have been met. PARTIES
51. Plaintiff Evelyn Houser is a 70-year-old African American resident of Philadelphia, Pennsylvania. Ms. Houser has lived in Philadelphia for decades and has contributed to her community as a block captain, committee person, and poll worker. Ms. Houser
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is presently retired but has a life-long history of work in housekeeping, security and office positions, counseling, home health aide positions, data entry, and retail. She has also raised four

children on her own. 52. Ms. Houser worked for Census in 1990. She started as a Census Taker, and then
was given an office job, where she was involved in hiring, including helping to perform background checks, interviewing candidates, and speaking with job applicants on the telephone.

She performed both jobs well. 53. After applying for a temporary position for the 2010 census, Ms. Houser received
the 30-day letter in March 2009. Census did not provide Ms. Houser with a copy of the arrest record about which it was requesting information. As a result, Ms. Houser did not know with certainty what was on the record to which she was expected to respond. On March 31,2009, Ms. Houser obtained a set of her fingerprints. She mailed them to Census on or about the same day, which was within the 30-day period in which Census requested a response to its letter. Ms. Houser believed that providing the fingerprints was a satisfactory response to the 30-day letter. She did not understand that she might have to provide court documentation to comply with

Census's requests. 54. Census denied Ms. Houser's application. By letter dated May 21, 2009, Census
informed Ms. Houser that she had not provided the requested information within 30 days. It also stated that as a result of her failure to act as requested, she was no longer being considered for employment. Ms. Houser then appealed to the EEO office of the Department of Commerce, and then to the EEOC, as discussed above. Ms. Houser remains available to work for Census if she

were to be hired.

55.

Ms. Houser has a 1981 case for theft and forgery, where she tried to cash a check

she had found. Ms. Houser was placed in a diversionary program known in Pennsylvania as

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"accelerated rehabilitative disposition" (ARD). She was never formally convicted. Ms. Houser has not been arrested since the 1981 case, 30 years ago.
56. Because of her clean criminal record over the last 30 years, her prior satisfactory employment by the Census Bureau (which was after her criminal case), her extensive work history, and her civic activities in her neighborhood, Ms. Houser is a strong job applicant to be a Census employee. Since the time of her application, Ms. Houser has remained ready, willing and able to work for Census if she were to be hired.
****
57. Plaintiff Felicia Rickett-Samuels is an African American resident of Stamford, Connecticut. Ms. Samuels is a paralegal at a law firm in Manhattan, where she has worked for the past nine years. Her work involves handling sensitive documents and daily face-to-face interaction with the firm's clients. Ms. Samuels has a B.A. and Masters Degree in human resources. Ms. Samuels holds a Notary Public commission issued by the State of New York, which requires that she be of good moral character.
58. Ms. Samuels also is a Waiver Service Provider for the Jewish Child Care Association, which provides mentorship to children in the foster care system. She also serves on the Board of Directors of the College and Community Fellowship at the City University of New York ("CUNY") Graduate Center, and she volunteers with Upwardly Global, an organization in which she works as a mentor and career coach for immigrant job-seekers.
59. Ms. Samuels saw the Census temporary position as an opportunity to make some extra money to pay back her student loans, and she applied for the position in January 2009. Ms. Samuels answered the question on the application about criminal background, stating that she had been convicted of three felonies. She also submitted a copy of the Certificate of Good Conduct issued to her by the State of New York Division of Parole. A Certificate of Good Conduct is
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issued to individuals convicted of more than one felony who have demonstrated rehabilitation to the satisfaction of the Division of Parole, after a waiting period and the submission of documentary evidence. A Certificate of Good Conduct creates a presumption of rehabilitation according to New York's Correction Law section 753(2).
60. Ms. Samuels applied for the Census position at a governmental building in Stamford, Connecticut. She fllled out the application and took the test in less than two hours. During her entire time in that room, she never saw any kind of posting or information about applicants' rights to appeal or challenge their treatment by the Census Bureau. The application and testing room had a large oval table with seats around it where applicants filled out their paperwork, with overflow at the sides of the room in classroom chairs. There was one Census official seated near the door who gave an introduction about the Census project, and who answered basic questions about the application, such as whether to use full names. The Census official never said anything about appealing or complaining about any part of the Census hiring process. Ms. Samuels recalls no postings whatsoever behind or to the side of this person, nor anywhere else in the room.
61. At the end of March 2009, Ms. Samuels received a 30-day letter from Census. In response, she sent Census another copy of her Certificate of Good Conduct, which lists her convictions for attempted assault in 1989, attempted sale of a controlled substance in 1993, and possession of marijuana in 1998.
62. Roughly a week later, she received a letter from Census denying her application. Nothing in this letter nor in any related papers or communications advised her of any of the procedures available to applicants for federal employment (nor of the time periods provided in federal law and regulations) to challenge an adverse decision declaring her ineligible for hire that the applicant believed to be discriminatory on the basis of race or ethnicity in violation of Title
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VII. She then called Census in Washington, D.C., but the person she spoke with would not tell her why she had been denied. The Census official also did not tell Ms. Samuels that she could appeal the decision. Since the time of her application, Ms. Samuels has remained ready, willing and able to work for Census if she were to be hired.
****
63. Plaintiff Anthony Gonzalez is a Latino resident of Riverview, Florida. Mr. Gonzalez was an Alcohol and Substance Abuse Treatment ("ASAT") Counselor for the New York State Department of Correctional Services ("DOCS") for sixteen years, prior to his retirement in November 2009.
64. Mr. Gonzalez applied to work for Census in February 2010, seeking the position as part of his public service, and recognizing the importance of an accurate count in terms of political representation and the receipt of federal funds. He also desired part-time work to supplement his fixed income. He received a 92 on the test, speaks Spanish, and is skilled in communicating with diverse populations.
65. Prior to working for the prison system, DOCS conducted a full investigation of Mr. Gonzalez' background, which includes three felonies for burglary and one for weapons possession in the 1980's, during a time in which he experienced a serious drug abuse problem. After completing a substance abuse treatment program in Albany, New York following his last conviction, Mr. Gonzalez wanted to prevent others from following the same path, and he became trained in substance abuse counseling. In 1992, he received his Certified Alcohol and Substance Abuse Counselor credential from the New York State Office of Alcoholism and Substance Abuse Services. Mr. Gonzelez has been sober and has had no criminal activity for the past 24 years, and he is now 52 years old.
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66. In response to his application to Census, Mr. Gonzalez received a 30-day letter in March 2010. He knew he would not be able to get official court documentation in 30 days of such old convictions, so he downloaded his listing on the DOCS Inmate Lookup website, which described his 1986 burglary conviction, and submitted that print-out. He also submitted copies of his retirement certificate and a letter from the Commissioner of DOCS thanking Mr. Gonzalez for his outstanding service.
67. To this elate, Mr. Gonzalez has not heard a response from Census, though he has remained ready, willing and able to work for Census if he were to be hired.
****
68. Plaintiff Precious Daniels is an African-American resident of Detroit, Michigan. Ms. Daniels applied for a temporary job with the 2010 census in January of 2010 and was sent a 30-day letter. She tried to comply with Census's request but was met with only obstacles, and was unable to obtain and produce the requested documentation.
69. Ms. Daniels is well qualified to work for Census. She has lived in the largely African-American community on the west side of Detroit her whole life, knows the people there well, and would be comfortable in any part of West Detroit where she might have been assigned.
70. Ms. Daniels went to high school at Redford High School in Detroit. For two years she attended Marygrove College in Detroit and studied psychology. She received a certification in phlebotomy from Crocker Adult Center in 2000.
71. For ten years, Ms. Daniels has been a phlebotomist at various Detroit-area hospitals and medical centers. She works with the public all day long, and it is her job to gain the trust of strangers so that she can make them comfortable enough to draw their blood.
72. Ms. Daniels applied for a job with Census out of a desire to utilize her skills to assist the U.S. government in gaining access to and in quickly establishing a rapport with her
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community. She recognizes the importance of getting an accurate count and wanted to help Detroit receive its fair share of federal funding. If hired, she anticipated meeting some reluctance or refusal to participate, and was prepared to explain what is at stake for the community.
73. Ms. Daniels was arrested once, in November of 2009, for participating in a peaceful protest against Blue Cross Blue Shield of Michigan to pressure them to stop paying lobbyists to weaken health care coverage. She and others were arrested for blocking the doorway. She was taken to jail, was released on $50 bail, and subsequently appeared in court for a hearing, at which the charge of disorderly conduct was dropped. Ms. Daniels has no other criminal history.
74. Since criminal charges against her had been dropped, Ms. Daniels assumed that Census must have been confusing her record with someone else. She went to the Central District police precinct and paid to get fingerprinted. She then mailed her fingerprint card to Census to dispute the identity of the arrest record. She was subsequently informed by Census that the fingerprints matched the ones they had on file. Census directed her to provide official documentation on her criminal history.
75. Ms. Daniels called the 36th District Court to try to obtain her criminal record. The court officer told her that there was no record for her. At that point, she did not see what else she could do to provide "official" documentation that she had never been prosecuted. To date, Ms. Daniels has not been hired by Census, though she has remained available to work since the time of her application.
****
76. Plaintiff Ignacio Riesco is a Latino resident of Massachusetts. Mr. Riesco is a student at Harvard University in the Faculty of Arts and Sciences, where he is finishing his undergraduate degree, while also preparing for law school. He also is starting a charity, where
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he takes students and professors to volunteer at a local women's shelter. 77. In 2006, while working in ticket sales at Disney World in Orlando, Florida, Mr.
Riesco was wrongly arrested for taking money from his employer. Subsequently, it was determined that he was not responsible for the financial loss, and the charges against him were dismissed.
78. Mr. Riesco applied for temporary work with Census in March 2010, and he received the 30-day letter in April. Within a few days, he submitted a disposition document of the wrongful arrest case, showing that all the charges had been dropped. He then called Census and was told that it would take up to five weeks for his file to clear, but not to worry because Census was still hiring. Mr. Riesco made repeated subsequent calls to check on the status of his application, but he never received further correspondence, and to this date has not received a decision on his application.
****
79. Plaintiff Chynell Scott is an African American resident of Philadelphia, Pennsylvania. Ms. Scott has an undergraduate degree from Philadelphia University and has been taking course toward obtaining a Masters in Business Administration.
80. Ms. Scott worked for the Census Bureau twice in the past, first performing address verification and subsequently as a field representative doing door-to-door interviews. Ms. Scott performed the job well on both occasions.
81. Ms. Scott sought to work for Census during the 2010 decennial process, and took the written examination on December 9, 2009. She was informed that her score was 100%.
82. The only criminal case involving Ms. Scott arose from an arrest on July 24, 2008. Ms. Scott had parked in a Wal-Mart parking lot and had gone into the store for 10 minutes while leaving her two children in the car. When she returned to the car, police officers were there and
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accused her of inappropriate behavior by leaving the children unattended. Ms. Scott was not arrested.
83. Because she was upset at how she had been treated, Ms. Scott later made a complaint to the officers' supervisor. After submitting that complaint, charges from the incident in the parking lot were filed against her. The charges comprised four misdemeanors and two summary offenses. On September 8, 2009, Ms. Scott pled guilty to the summary offense of disorderly conduct. All other charges were dropped. Ms. Scott was sentenced to pay fines and costs, which she paid by November 5, 2009. She was not sentenced to any jail or probation time.
84. The Census Bureau sent Ms. Scott a 30-day letter on December 16, 2009. In early January 2010, Ms. Scott mailed Census a "comt summary" about her case. On Febmary 3, 2010, the Census Bureau sent her a letter denying employment based on her criminal record.
85. Since the time of her application, Ms. Scott has remained ready, willing and able to work for Census if she were hired.
****
86. Plaintiff Vivian Kargbo is an African American resident of Dorchester, Massachusetts. Ms. Kargbo works as a home health aide during the day, as a server at a restaurant on nights and weekends and is also a part-time student at Roxbury Community College.
87. Ms. Kargbo sought to work for Census during the 2010 decennial process, and took the written examination on or about March 10, 2010. She was informed that her score was in the 80th percentile.
88. The Census Bureau sent Ms. Kargbo a 30-day letter on March 24,2010. 89. Ms. Kargbo has never been convicted of a crime. Ms. Kargbo has two dismissed charges against her, both of which have been sealed under Massachusetts law.
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Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 27 of 43
90. When Ms. Kargbo received the 30-day letter from Census, she did not understand what official court documentation she was expected to provide. By correspondence dated March 31, 2010 she sent the Census Bureau her fingerprints, reasonably expecting that this is what was requested of her.
91. She subsequently called Census several times to find out the status of her application but was not provided with any information.
92. Since the time of her application, Ms. Kargbo has remained ready, willing and able to work for Census if she were hired.
****
93. Plaintiff Scotty Desphy is a 60-year-old African American resident of Philadelphia, Pennsylvania. Ms. Desphy was hired as a temporary worker during the 2000 Census, and performed her job well. She has held steady employment, including work most recently as a psychiatric technician at Friends Hospital in Philadelphia. Ms. Desphy is currently working toward a Master's degree from Temple University.
94. Ms. Desphy is well qualified to work for Census again. She has the same record of contacts with law enforcement as she did when her explanation of her record was accepted, and she was hired to work for Census in 2000. Ms. Desphy applied for a Census position in February 2010, and subsequently received a 30-day letter. Ms. Desphy responded with a written explanation of the single criminal event in her life and two letters of reference supporting her moral character. Nevertheless, on March 4, 2010, Census sent Ms. Desphy a letter rejecting her for temporary employment in the 2010 census.
95. The only criminal case against Ms. Desphy occurred nearly 30 years ago in 1982. She was attacked by an inebriated woman, and Ms. Desphy struck her in self-defense. Ms. Desphy was charged with assault and was given one year of probation with no jail time. The
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judge informed her that the charge would be expunged upon successful completion of probation. Ms. Desphy did complete her probation wilhout further incident.
96. Since the time of her application, Ms. Desphy has remained ready, willing and able to work for Census if she were hired.
****
97. At all times relevant to this complaint, Plaintiffs were applicants for employment to, or employees of, an executive agency of the United States government within the meaning of Title VII, 42 U.S.C. § 2000e-16(a).
98. Defendant Rebecca M. Blank is the Acting Secretary of the United States Depmtment of Commerce, and has full authority over the United States Census Bureau. 42 U.S.C. § 2000e-16(c).
STATEMENT OF THE CLAIM A. The Census Hiring Process has a Discriminatory Racial and Ethnic Impact 99. Census's screening practice effectively imported acute racial and ethnic disparities in the criminal justice system into the employment process, thereby multiplying the negative impact on African American and Latino job applicants with arrest and minor or old conviction histories. Indeed, the Depmtment of Justice recognizes that a practice of using the FBI criminal records database in a widespread manner for criminal screening, without further refinement, undermines employment anti-discrimination policies. Attorney General's Report on Criminal History Background Checks, June 2006, p. 20. 100. Racial disparities in the U.S. criminal justice system are severe. African Americans and Latinos are far more likely to have arrest records and convictions than whites. While African Americans make up approximately 12.3% of the population, they account for approximately 28.3% of arrests and an even greater percentage of felony convictions
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nationwide.5 Similarly, Latinos are arrested and incarcerated at rates significantly higher than
their proportion of the population. 101. The FBI estimates that well over 14 million people were arrested nationwide in
2007 alone. Most arrests are for minor crimes and non-criminal offenses such as curfew and loitering violations, vagrancy, and disorderly conduct.6 African Americans are as much as 15 times more likely than whites to be arrested for low-level offenses.7 Yet less than 20% of the arrests of African Americans for these offenses result in convictions. The racial disparities are exacerbated by the fact that more than 80 percent of those charged with crimes nationwide are indigent and absorb the collateral consequences of these incidents in numerous aspects of their lives. 8
B. The 30-Day Letter Created a Barrier to Employment that is Neither Job-Related nor Consistent with Business Necessity
102. The 30-day letter screened out individuals who would be eligible for employment
5 The statistics cited in this Complaint are derived from publicly available sources and are subject to that limitation. 6 In 2008 in New York State, more than 87 percent of adult convictions were for misdemeanors or petty offenses. (N.Y. Division of Criminal Justice Services (DCJS), Di.spositions ofAdult Arrests by County and Region (611812009). Nationwide, only 4.2 percent of the 14 million annual adult anests resulted in charges for violent crimes. Crime in the United States 2007 (FBI, Sept. 2008). 7 For example, from 1997 to 2006, the New York City Police Department anested, charged with misdemeanors, and jailed more than 353,000 people for possessing small amounts of marijuana. U.S. Government surveys have consistently found that Whites use marijuana at higher rates than African Americans. Yet, African Americans constituted 52% of the anests (while accounting for only 26% of the city's population). Relative to white arrest rates for marijuana, the arrest rate of African Americans is five times greater and the arrest rate of Latinos is nearly three times greater. H. Levine & P. Small, MARIJUANA ARREST CRUSADE: RACIAL BIAS AND POLICE POLICY IN NEW YORK CITY, 1997 - 2007 (New York Civil Liberties Union, Aptil 2008). 8 Denial of employment and other collateral consequences (such as eviction from public housing and denial of public benefits) trap many low-income individuals-especially African Americans and Latinos-in recurring encounters with the criminal justice system. Studies consistently have shown that recidivism is directly linked to lack of economic opportunity. Individuals and their families begin to suffer collateral consequences from the moment of arrest, and these punishments create significant batTiers to
successful reentry from the criminal justice system. SeeM. Smyth, From Arrest to Reintegration, 24
Criminal Justice 3 (Fall 2009, ABA).
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according to any rational and fair system of determining who does not present a legitimate threat to the public safety or the integrity of the counting process, i.e. those with arrests but no convictions, and those with convictions that are old or do not relate to violence or dishonesty. The 30-day letter does not identify the criminal history information that prompted Defendant to send the letter. By requiring applicants to provide official court documentation of all arrests, Census created a hurdle that often was insurmountable, and in many cases is literally impossible to overcome. Many of the "official court documents" that Census requires simply do not exist.
103. Even where compliance was not a literal impossibility, the difficulty, time, and expense of attempting to obtain and submit official records within 30 days presented a significant impediment to many applicants. Where the individual was not able to comply within 30 days, his or her application, like Ms. Houser's, was automatically denied with no opportunity to re-apply.
104. Ironically, the directive in the 30-day letter to produce documentation of "any and all arrest(s) and/or conviction(s)" deterred or excluded many of the best-qualified applicants with arrest records of non-criminal or insignificant charges that are decades old. Generally speaking, the older and less serious one's record, the harder it is to find the original file, and the more likely one is to fail to obtain and submit it, especially when limited to less than a month to do so. Census thus unnecessarily excluded qualified potential workers and undermined its own publicized goal of "indigenous hiring," i.e. hiring people to work in the communities in which they live. This not only violated Title VII because of the racial impact of relying on arrest records as a screen, but also increased the risk that Census would end up with a substantial undercount in communities of color. Due to the historically low mail-in response rate in many such conmmnities, there was a heightened need to hire putative class members.
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1. Compliance with the 30-Day Letter was Impossible for Many Applicants 105. Many people with criminal histories have had their records expunged or sealed and have been returned to the legal position of having never been arrested or convicted. As of the latest report in 2006, sixteen states and the District of Columbia have statutes providing for expungement of felony convictions; twenty states have statutes that provide for setting aside felony convictions; and fifteen states have statutes that provide for the sealing of conviction records. However, often these expungements and sealings are not reported to the FBI from the states in which they originated, so the records of convictions are never removed from the FBI database. Yet, many of these records are not accessible to members of the general public, and some expunged or sealed records are actually destroyed (e.g. Pennsylvania) or made unavailable for release (e.g. New Jersey and Arkansas). In a number of states and localities, regardless of expungement or sealing, criminal records have been destroyed pursuant to official record retention policies or by inadvertence. Thus, many Census applicants were caught in a Catch-22: they would not be hired unless they provided an official document that no longer exists, but failure to respond with official documentation led to automatic rejection.9
2. Compliance with the 30-Day Letter was Unduly Burdensome 106. Even where records have not been destroyed, a vast number of applicants were faced with insurmountable hurdles in determining where their records were kept and how to obtain them. The process by which official court records are obtained is unknown to many people, especially those with only fleeting interaction with the criminal justice system. The 30clay letter failed to provide even the simplest advice on which records to obtain and how to obtain
9 By contrast, the criminal background check policy of the U.S. Postal Service provides: "In instances where a criminal conviction is set aside, vacated, or annulled, expunged, or sealed pursuant to state or court order, the conviction may not serve as a basis for the disqualification of the applicant. Fmther, no inquiry may be made, either oral or written, directly or indirectly, into that conviction." Postal Handbook, p. 109.
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them. Finding and securing copies of such records often requires sophistication about states and individual court systems' record-keeping mechanisms, which vary widely from state to state and locality to locality.
107. Additionally, because Census directed them to provide "all" official records, many applicants faced the nearly impossible burden of finding records that are decades old, possibly located in a different state, in four weeks or less (depending on mailing time of 30-day letter). Even where conceivably possible, the cost and delay involved in such a search are cumulative and prohibitive. This had a particular impact on retirees living on limited incomes, who Census actively encouraged to apply. To make matters worse, the directive to supply "all" official records of "any anest" literally includes juvenile infractions.
3. The 30-Day Letter was Ambiguous and Created Confusion 108. Many applicants were rightly confused as to what constitutes an arrest and thus were confused as to how to comply with the 30-day letter. There is no universal definition of when a person is anested. For example, the Department of Justice distinguishes between an "arrest" and "detention," without clearly defining either. 28 C.F.R. § 20.3(d). If people are not sure whether an encounter with the police has been reported as an arrest, they will not know which incidents to investigate. In many African American and Latino neighborhoods, where stop-and-frisk and other encounters with police frequently occur, it is hard to know which interactions resulted in a record and which did not.10 109. Since filing the initial Complaint in this case, Plaintiffs learned that the 30-day letter is intended to solicit documentation only where the arrest led to police booking and fingerprinting. Yet, when applicants were confused and sent documentation on arrests for
°1 For example, in 2009, African Americans and Latinos collectively represented 84% of all individuals
subjected to "stop and frisk" by the police in New York City, while they compromise only 53 percent of the city's population.
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citations or other minor offenses where they were released without being booked, Census "adjudicated" those applicants, diminishing their chances of being hired, and in some cases leading to rejection from employment.
110. There also is significant ambiguity in the term "official court documentation" used in the 30-day letter. There is a wide spectrum of possibilities, from mere disposition statements to full court transcripts. In some states, such as Pennsylvania, individuals can obtain computergenerated summary dispositions that identify their criminal history but are not original documents. As another example, while the New York State Office of Court Administration provides criminal background reports (for a fee exceeding $50), they are not certified and thus may not be considered "official." To comply with the 30-day letter mandate, an individual thus could be relegated to obtaining official certificates of disposition from each court.
111. Additionally, each state maintains its own repository of criminal records. For many people seeking their criminal records, this is the most obvious source of retrieval, especially since many repositories have automated features and can be accessed on-line. However, many criminal records that appear in the FBI database are not accessible to applicants through their state repositories. Indeed, well over 10% of criminal records nationwide are in what the Department of Justice classifies as "Closed Record States," where criminal records are unavailable to individuals due to strict limitations on production. In some other states where records are not completely closed, disposition information will not be disclosed even upon request by the subject of the record.
4. The 30-Day Letter Caused Unnecessary Delay Resulting in Denial of Employment 112. Additionally, the delay created by the 30-day letter-and the series of events that it triggered, including follow-up letters with further directives-was itself a significant barrier to employment. The delay imposed by this process harmed class members who should have been
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hired-and paid-months earlier, which had a significant impact on the many applicants struggling with financial hardship in the economic climate of high unemployment.
C. The "Adjudication" Criteria Created a Barrier to Employment that is Neither Job-Related nor Consistent with Business Necessity 113. The few applicants who made it past the 30-day letter faced a criminal background screen that was arbitrary and unfair, and which failed to distinguish those individuals who present a legitimate threat to the public safety or the integrity of the counting process. 114. Nearly all felonies, even if decades old, even if committed as a juvenile, and even where expunged or dismissed through deferred adjudication, probation, or similar diversion programs, led to exclusion from hiring by Census. Many misdemeanors also led to exclusion. Even the most petty offenses-such as "abusive language," "unlawful assembly," or "liquor possession by a minor"-couldlead to exclusion if the applicant was unable to document the event, or if more than one such violation was on the person's record. In the limited places where the criteria allowed for discretion, Census officials applied ad hoc standards, unguided by professional principles, and based largely on gut instinct. 115. Census's adjudication policy was far too over-inclusive to meet the standards of job-relatedness and consistency with business necessity. For example, screening out applicants with any felony conviction, regardless of the nature of the crime, where the person was on parole or probation, or in prison, within the past ten years, simply cannot be justified as being necessary to protect the public or the process. This was especially true for those applicants whose charges were dismissed through an adjournment or diversionary program. 116. Census did not have any legitimate process or policy to determine whether individuals convicted of crimes decades ago had made positive changes in their lives such that they no longer posed a risk to others. Its employment screening process provided no real opportunity for applicants to provide proof of rehabilitation, such as documentation of successful
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participation in drug treatment programs, educational achievements or relevant employment, or to submit certificates of relief from disabilities, which in many states create a presumption of rehabilitation.
117. Further, Census applied the same screening factors to office clerks as enumerators, even though clerks had no interaction with the public. Screening clerks for danger to the public was, on its face, not job-related.
D. There are Less Discriminatory Alternatives that Would Have Better Achieved Census's Legitimate Hiring Interests 118. As discussed above, the 30-day letter and adjudication criteria created significant barriers to employment that deterred or excluded many properly qualified persons, including disproportionate numbers of African American and Latino applicants. There are less discriminatory alternatives that would have better achieved Census's legitimate hiring interests in protecting the public and the integrity of the counting process. Among the less discriminatory alternatives, a simple resolution to this problem would have been for Census to cease using the 30-day letter and to have granted eligibility to all qualified applicants with arrests only and to those with convictions who did not present a legitimate threat to the public safety or the integrity of the counting process. Such a process would have included the following steps: (1) All applicants with a record of an arrest over one year old at the time of application and no record of criminal conviction, as well as those applicants with juvenile adjudications or adult convictions that have been expunged or sealed, should be given the same consideration as applicants whose names do not appear in the FBI database, unless Census provides the applicant with documented evidence that the individual has been convicted of a crime of violence or dishonesty that is a valid basis for excluding them from consideration;
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(2) All applicants with an FBI record of conviction for a crime that by its nature does not pose a legitimate threat to the public safety or the integrity of the counting process should be given the same consideration as applicants whose names do not appear in the FBI database;
(3) Consistent with (1) and (2) above, all applicants whose criminal history may pose a legitimate threat to the public safety or the integrity of the counting process should be given a written description of the conviction(s) (or pending charge) that form the basis for presumptive exclusion; and
(4) Census should ask each presumptively excludable applicant in (3) if they contest the identified conviction(s), and, for charges pending less than a year, whether a disposition has occurred. Each such individual should be given a meaningful opportunity to demonstrate that they do not present a current threat, including being given the chance to submit evidence of rehabilitation, an explanation of events leading to the conviction, or information regarding other mitigating factors. Census should then promptly evaluate such evidence.
CLASS ACTION ALLEGATIONS 119. Plaintiffs are all members of the Class, which includes applicants who applied for temporary employment with the United States Census Bureau, who, under Defendant's criminal records policy, were sent a 30-day notice to produce official court documentation or fingerprints, and who were thereafter baned from employment during the process of temporary hiring for the 2010 decennial census. 120. The members of the Class are so numerous that joinder of all of them is impracticable. Census recruited for decennial positions throughout the United States and screened all of the approximately 3.8 million applicants using the FBI database to hire around 1.4 million temporary employees. Approximately 700,000 applicants were excluded from consideration by use of the 30-day letter, and approximately 20,000 applicants have been rejected
35

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 37 of 43
through application of the "adjudication" criteria. An additional unknown number of applicants who were ultimately deemed "eligible" were effectively denied employment through the unnecessary delay caused by the 30-day letter process. Others were actually hired, but then terminated based on application of the "adjudication" criteria.
121. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Defendant acknowledges that Census had a single, uniform criminal background check procedure that was used for all decennial applicants. Common questions include, but are not limited to: (1) Whether it was Defendant's policy and practice to deter or exclude temporary job applicants with criminal histories who have never been convicted or who should have been eligible for employment based on valid factors assessing legitimate threat to public safety or the integrity of the process; (2) Whether Defendant's policy and practice to deter or exclude job applicants based on criminal history had a discriminatory disparate impact on African American and Latino applicants; (3) Whether Defendant's policy and practice to deter or exclude job applicants based on their criminal history records is job-related and consistent with business necessity; (4) Whether Defendant's policy and practice to exclude job applicants based on its "adjudication" criteria is job-related and consistent with business necessity; (5) Whether there was a less discriminatory policy and practice that would have met Defendant's legitimate needs; and (6) What equitable and injunctive relief for the Class is warranted.
122. Plaintiffs' claims are typical of the claims of the Class: (1) Each of the Plaintiffs applied for a temporary position in the 2010 census; (2) Each was processed through the same application procedure; (3) Each was subjected to the same pre-screening device; (4) Each was constructively or actually denied the position; and (5) Each has the same discrimination claim based on disparate impact. All of these claims are shared by each and every class member.
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Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 38 of 43
123. Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have no conflict with one another or any class member. Plaintiffs are committed to the goal of having Census revise its hiring policy and practice to reduce or eliminate its discriminatory impact on African American and Latino applicants.
124. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof.
125. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b) due to: (1) the risk of inconsistent or varying adjudications with respect to individual class members through the prosecution of separate actions; (2) Defendant's refusal to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole; and/or (3) the predominance of questions of law and/or fact common to class members over any questions affecting only individual members, and the superiority of a class action to other methods for fairly and efficiently adjudicating this controversy.
CLAIM FOR RELIEF (Title VII of the Civil Rights Act of 1964,
42 U.S.C §§ 2000e et seq.) 126. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 127. Plaintiffs bring this claim on their own behalf and on behalf of the Class. 128. Defendant's policy and practice of using employment screens that deter or exclude applicants with arrest or irrelevant conviction records from obtaining employment opportunities, has harmed, and continues to harm, Plaintiffs and the Class, and constitutes unlawful discrimination on the basis of race, ethnicity, color, and/or national origin in violation of 42 U.S.C. §§ 2000e et seq. 129. Defendant's policy and practice of using employment screens that deter or exclude applicants with arrest or irrelevant conviction records from obtaining employment opportunities
37

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 39 of 43
had a disparate impact on African Americans and Latinos and is neither job related nor consistent with business necessity. Even if Defendant's policy and practice of denying employment opportunities based on applicants' criminal history records could be justified by business necessity, a less discriminatory alternative exists that would have equally served any legitimate purpose.
130. Plaintiffs and the Class have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. The practices identified above have been in place since at least the initiation of hiring for the 2000 decennial census, and Census maintains a permanent staff of approximately 50 full-time CHEC employees yearly to conduct background checks on its applicants for employment. Plaintiffs and the Class they seek to represent are now suffering, and will continue to suffer, irreparable injury from Defendants' discriminatory acts and omissions.
131. Defendant's conduct has caused, and continues to cause, Plaintiffs and the members of the Class substantial losses in earnings and other employment benefits.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs and the Class pray for relief as follows:
132. Certification of the case as a class action on behalf of the proposed Class; 133. Designation of Representative Plaintiffs Evelyn Houser, Anthony Gonzalez, Ignacio Riesco, Pi·ecious Daniels, Felicia Rickett-Samuels, Chynell Scott, Vivian Kargbo, and Scotty Desphy as representatives on behalf of the Class; 134. Designation of Representative Plaintiffs' counsel of record as Class counsel; 135. A declaratory judgment that the practices complained of herein are unlawful and violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; 136. A preliminary and permanent injunction against Defendant and all officers, agents,
38

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 40 of 43
successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful policies, practices, customs and usages set forth herein, consistent with the less discriminatory alternative described above;
137. An order that Defendant institute and carry out policies, practices, and programs that provide equal employment opportunities for all Class members who would be eligible under application of the Uniform Guidelines for Employee Selection Procedures and related EEOC Guidance, and that Defendant eradicate the effects of past and present unlawful employment practices;
138. Because it is no longer possible to restore Plaintiffs and Class members to their rightful positions at Census as applicants or employees for the 2010 decennial count, an order for payment of lost wages and benefits;
139. Back pay accruing as a result of a delay in hiring Plaintiffs and Class members caused by the illegal policies and practices alleged herein;
140. Costs incurred herein, including reasonable attorneys' fees to the extent allowable by law, including but not limited to 42 U.S.C. §§ 2000e-5(k) & 2000e-16;
141. Pre-judgment and post-judgment interest, as provided by law; and 142. Such other and further legal and equitable relief as this Court deems necessary, just, and proper. Dated: New York, NY September 21, 2012
OUTTEN & GOLDEN LLP
Adam T. Klein Justin M. Swartz Lewis M. Steel Ossai Miazad
39

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 41 of 43

Amber C. Trzinski Sally J. Abrahamson** 3 Park Avenue, 29th Floor
New York, NY 10016 Telephone: 212-245-1000

and

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Ray P. McClain*
Jane Dolkart* 1401 New York Ave., NW Washington, DC 20005

CENTER FOR CONSTITUTIONAL RIGHTS
Darius Charney 666 Broadway 7th Floor New York, NY 10012

COMMUNITY SERVICE SOCIETY
Judy Whiting Paul Keefe 105 East 22nd Street New York, NY 10010
COMMUNITY LEGAL SERVICES, INC.
Sharon Dietrich* 1424 Chestnut Street Philadelphia, PA 19102

INDIAN LAW RESOURCE CENTER
Robert T. Coulter* 602 North Ewing Street Helena, MT 59601
PUBLIC CITIZEN LITIGATION GROUP
Michael T. Kirkpatrick* 1600 20th St. NW Washington, DC 20009

LATINOJUSTICE PRLDEF
Jackson Chin 99 Hudson Street, 14th Floor New York, NY 10013

*Admitted pro hac vice **Pro hac vice .forthcoming
Attorneys for Plaintiffs and the Putative Class

40

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 42 of 43
Exhibit A

Case 1:10-cv-03105-FM Document 125 Filed 09/21/12 Page 43 of 43 REDACTED UNITED STATEiS DEPARTMJ:NT OF COMMERCE
l:conomios and Statistics Administration U.S. Census Bureau
Washington, DC 202:33-0001
February 16. 2010
Precious A Daniels
REDACTED
Detroit, Ml 48206
Dear Applicant, The Census Bure2u processes all applicants for temporary census jobs throllgh a prenappointment name check against the Federal Bureau of Investigation (FBI) Criminal Justice lnfoi!netion Services Division's criminal tile and reviews the form~ you completed at the time of application. Your application was potentially flagged as disclosing information pertaining to a conviction, court rnartial, or pending charges. If you disclosed such information, Census requests a deta."'ad explanation of the self-disclosure, as well as any and all court
documents related to the arrest or convtdion. However, if you did not disclose any adverse information on your
application, your name ct1eck mosi likely resulted in a tentative match between you and an arrest record in the
FBI criminal history index. Because this identification is based on descriptors only, there Is a chance that this record does not concern you. Therefore, you may do one of the following: A. ff you do not dispute the identity of the arrest record in question, provide OFFICIAL COURT
documentation on any and all arrest{s) and/or conviction(s) in your past; B. If you wish to dispute the identity of tl1e arrest record in question, you may provide a set of original
fingerprints. Cafl1~888~360-5561 to obtain e fingerprint card and return envelope from the office in Which you applied. If you send a fingerprint card that shows a match with the oriminalhistoJY record in question. and you did not provide the request;d court documentation, you will be made ineligible for hire. Please affix an address label provided below to the return envelope of any correspondence. Use the second address label for any additional information that,- needs to be sent in a separate envelope. For your application to remain active, you must return all documents within 30 days of the date appearing above. The Census Bureau will not reimburse you for costs associated with obtaining your fingerprints or court documentation. Also, providing any of the above information does not g4arantee that you wlll be hired by the Census Bureau. Sincerely, _Census Hiring 101nd Employment Check Staff Administrative and Management Systems Division U.S. Census:.Bw:eau
P000221

 
 Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 1 of 61

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------_ •• -••••••••••••• y
EVELYN HOUSER, ANTHONY GONZALEZ, IGNACIO RIESCO, PRECIOUS DANIELS, FELICIA RICKETT-SAMUELS, CHYNELL SCOTT, VIVIAN KARGBO, and SCOTTY DESPHY,
Plaintiffs,

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USDCSDNY DOCUMENT

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MEMORANDUM DECISION AND ORDER

- against ­

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PENNY PRITZKER, Secretary, United States Department of Commerce,
Defendant.
--------------------------------------------------------------x
FRANK MAAS, United States Magistrate Judge. In this putative class action, Plaintiffs, individually and on behalf of others
similarly situated, allege that the process by which the United States Census Bureau ("Census Bureau") screens applicants for temporary jobs for the Decennial Census is racially discriminatory and therefore violates Title VII of the Civil Rights Act of 1964, 42 u.S.c. § 2000e, et ~ ("Title VII"). Specifically, the Plaintiffs challenge (a) the Census Bureau's policy requiring all applicants with criminal records to provide "official court documentation" of their prior arrests and convictions within thirty days after their receipt of a demand letter, and (b) the criteria the Census Bureau uses to determine whether an applicant who complies with such a demand is suitable for employment. The Plaintiffs contend that the Census Bureau's screening practices are neither job-related nor

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 2 of 61

consistent with business necessity, and disproportionately preclude African-Americans and Latinos from obtaining employment with the Census Bureau because these groups have higher arrest and conviction rates than Caucasians.
On July 8, 2013, the Plaintiffs filed a motion to certify this action as a class action under Rule 23 of the Federal Rules of Civil Procedure. (ECF No. 166). On December 16, 2013, before the parties finished briefing the class certification motion, the Census Bureau filed a motion to dismiss for lack of subject matter jurisdiction. (ECF No. 225). As grounds for that motion, the Census Bureau alleges that each of the named plaintiffs lacks constitutional standing to pursue relief under Title VII. Both motions are now fully submitted.1 I. Background
A. Census Bureau The Census Bureau is an agency of the United States Department of
Commerce. (Who We Are, United States Census Bureau, http://www.census.gov/ aboutus/who.html (last visited July 1, 2014)). Every ten years, as Article I, Section 2 of the United States Constitution requires, the Census Bureau conducts a Population and Housing Census, commonly known as the Decennial Census. (About What We Do, United States Census Bureau, http://www.census.gov/aboutus (last visited July 1, 2014); What is the Census?, United States Census 2010, http://www.census.gov/2010census/

1

The parties have filed certain exhibits under seal pursuant to a stipulated

protective order. (ECF No. 91).

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Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 3 of 61
about (last visited July 1, 2014)). The Government uses the data collected during each Decennial Census to apportion seats in the United States House of Representatives, to inform redistricting decisions, and to allocate substantial amounts of federal funding. (ECF No. 204 (Decl. of Ass’t U.S. Att’y Tara La Morte, dated Oct. 28, 2013), Exs. 1 at USA38988, 2 at USA7667).
B. Census Bureau Hiring Process 1. Initial Application Stage The 2010 Decennial Census required the Census Bureau to fill over 1.3
million temporary positions nationwide between October 2008 and September 2010. (ECF No. 205 (Decl. of Viola Lewis Willis, dated Oct. 28, 2013 (“Willis Decl. I”)), ¶ 2). Recruiting and hiring for these positions was conducted on a regional basis by “Local Census Offices” (“LCOs”). (Id. ¶ 7). Although each LCO had its own hiring needs, applicants across the country all were subject to the same initial application procedures and had to meet the same basic qualifications. At the outset, each applicant had to complete an application form to confirm that the applicant was over eighteen years of age, had a Social Security number, and had registered for the selective service if he was a male born after 1959. (ECF Nos. 169-170 (Decl. of Ossai Miazad, Esq., dated June 28, 2013 (“Miazad Decl. I”)), Ex. 71 at USA32563-67). The application form further inquired as to the applicant’s citizenship status, hours of availability, means of transportation, former military service, and foreign language skills, although none of these criteria was dispositive at the initial application stage. (Id.).
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After submitting initial applications, applicants were required to take a written test, which the Census Bureau used to ascertain whether the applicant could follow written instructions, perform simple mathematical computations, and complete other job-related tasks. (ECF No. 227 (Decl. of Viola Lewis Willis, dated Dec. 16, 2013 (“Willis Decl. II”)), Ex. A at USA1758). To qualify for a spot in the applicant pool, candidates generally had to score 70 or higher on the exam, inclusive of any “preference points” awarded to veterans. (Miazad Decl. I, Ex. 56 at USA45163; Willis Decl. I, ¶ 10). Applicants who scored below 70 were permitted to take the test again in an effort to improve their scores. (Willis Decl. I, ¶ 4). The highest score that an applicant achieved would supersede all prior test scores on file. (Id.).
2. Criminal Background Screening and Adjudication Applicants who submitted an application and completed the written exam were required to undergo a criminal background check. (ECF No. 206 (Decl. of Sandra Patterson, dated Oct. 28, 2013 (“Patterson Decl.”)), ¶ 3). At the outset of the process, the Census Bureau ran each applicant’s name, date of birth, and Social Security number through the criminal history database of the Federal Bureau of Investigation (“FBI”). (Id.). The Plaintiffs allege that this “namecheck” process often returned multiple “hits” for a single applicant and resulted in false positives for applicants who had common names or had used aliases in the past. (See ECF No. 176 (Pls.’ Mem. of Law in Supp. of Mot. for Class Cert. (“Pls.’ Class Cert. Mem.”)) at 15).
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Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 5 of 61
If the FBI database returned a criminal history for a particular applicant, LCO staff members would review its contents using certain criteria to determine whether to treat the applicant as immediately available for hire, or to request further information from the applicant. (Patterson Decl., ¶¶ 4-5). According to the Plaintiffs, this namecheck adjudication did not consider the disposition of the applicant’s cases, the amount of time that had passed since the arrests occurred, the nature of the applicant’s offenses, or whether the position the applicant sought involved interaction with the public. (ECF No. 125 (Second Am. Compl. (“SAC”)), ¶¶ 2, 15-16). If the LCO staff determined that more information was necessary, the Census Bureau sent a form letter (the “30-day Letter”) requiring the applicant to provide “official court documentation on any and all arrest(s) and/or conviction(s)” within thirty days. (Patterson Decl., ¶ 5; Miazad Decl. I, Ex. 70 at USA43538). If the applicant disputed the “identity of the arrest record,” the 30-day Letter advised the applicant to submit a set of fingerprints within that period. (Miazad Decl. I, Ex. 70 at USA43538).
The Plaintiffs estimate that nearly 854,000 of the approximately 3.8 million applicants who applied for temporary employment during the 2010 Decennial Census received a 30-day Letter. (Id., Ex. 68). Only a small percentage of those applicants responded to the letter. (Id.). Overall, the Plaintiffs contend that the 30-day Letter policy prevented ninety-three percent of the applicants with arrest records – approximately 700,000 people – from being considered for employment in connection with the 2010 Census. (SAC ¶ 2).
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Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 6 of 61
If an applicant did respond to the 30-day Letter, his application proceeded to the “adjudication” stage of the screening process. (Patterson Decl., ¶ 6-7). At this stage, the Census Bureau applied certain criteria (“Adjudication Criteria”) to determine whether the applicant was suitable for employment. (Id.). Pursuant to these criteria, the Census Bureau automatically excluded applicants with prior arrests for nearly all felonies and most misdemeanors. (Miazad Decl. I, Ex. 92). To the extent that the criteria allowed any discretion, Census Bureau employees were instructed to “[d]efer anything [they felt] strongly about” or as to which they could not “make an unbiased decision.” (SAC ¶ 26). The Plaintiffs contend that the Adjudication Criteria were “arbitrarily drawn, dramatically overinclusive, unguided by professional principles or social science, and based largely on irrational instincts.” (Pls.’ Class Cert. Mem. at 21). Moreover, because the adjudication stage often took months to complete, the Plaintiffs allege that many applicants who eventually were deemed “eligible for hire” nonetheless were never considered for a job because the Census Bureau had already filled all of the temporary positions by the time the applicants received clearance. (SAC ¶ 29).
3. Final Selection Process If an applicant was deemed “eligible for hire” following the background check, LCO staff members entered the applicant’s information into an electronic data management system known as the Decennial Applicant Personnel Pay System (“DAPPS”). (Willis Decl. I, ¶ 4). Once an applicant appeared in DAPPS, the Census Bureau assigned his application a numerical label, known as a “geocode,” that
6

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 7 of 61
corresponded to the geographic area in which he lived. (Id. ¶¶ 9-10). LCO staff members could use DAPPS to filter applicants by geocode in order to limit their searches to applicants residing within the LCO’s jurisdiction. (Id. ¶ 29).
To begin the hiring process, LCO staff members completed a “Requisition to Hire” form that identified the number of positions available, the applicable geographic area, and any required qualifying criteria, including hours of availability, foreign language proficiency, and access to transportation. Based on the information in the Requisition to Hire form, DAPPS generated a “selection record” that listed all qualified applicants within the LCO’s geographic jurisdiction from highest to lowest test scores. (Id. ¶ 13). Each selection record listed a maximum of fifty applicants, so candidates whose test scores did not place them among the top fifty qualified applicants did not appear on the selection record. (Id. ¶ 26). Many selection records listed fewer than fifty candidates. (See id., Exs. A-H).
The first group of applicants on the selection record included all qualified candidates who received “veteran preferences” because they had significant servicerelated disabilities. (Id. ¶¶ 11, 14-15). LCO staff members were required to select these preference-eligible applicants over other applicants on the selection record, unless they provided a written justification for their belief that the preference-eligible applicant was not qualified for the position. (Id. ¶ 23). If there were not enough qualified preferenceeligible applicants to fill the open positions, LCO staff members were required to offer interviews for the remaining positions to the highest listed applicants on the selection
7

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 8 of 61
record. (Id. ¶ 24). If the position called for a particular foreign language proficiency, qualified non-citizen applicants appeared at the bottom of the selection record. (See Willis Decl. II, Ex. A at USA1734). LCO staff members were permitted to offer interviews to these non-citizen candidates only if no qualified citizen applicants were available. (Id. at USA1719).
LCO staff members were instructed to employ a “rule of three” when making hiring decisions. Although they had some discretion in deciding whether to extend an offer following an interview, the “rule of three” required that LCO staff always select from the top three available applicants. For example, if staff members interviewed the first, second, and third candidates listed on the selection record, they could choose to offer the position to the third candidate over the first and second candidates. However, the LCO staff members would have to offer a position to one of these three candidates before moving on to the fourth listed candidate. If the selected candidate declined the offer, the LCO staff could continue down the selection record, but at all times were required to offer the open position to one of the top three available applicants. (See ECF No. 247 (Decl. of Ossai Miazad, dated Feb. 10, 2014 (“Miazad Decl. II”)), Ex. 124 at USA5147-48).
C. Named Plaintiffs The Second Amended Complaint names eight plaintiffs as putative class
representatives: Evelyn Houser, Anthony Gonzalez, Ignacio Riesco, Precious Daniels, Felicia Rickett-Samuels, Chynell Scott, Vivian Kargbo and Scotty Desphy. (SAC at 2).
8

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 9 of 61
Each of these named plaintiffs applied for, but ultimately was denied, temporary employment with the Census Bureau during the 2010 Decennial Census.
1. Evelyn Houser Evelyn Houser (“Houser”) is an African-American resident of Philadelphia, Pennsylvania. (Miazad Decl. I, Ex. 20 (“Houser Dep.”) at 4:23-24, 8:9-11). She worked as a temporary employee for the Census Bureau during the 1990 Decennial Census, and then reapplied for a similar position in January 2009. (Id. at 31:9-16; Patterson Decl., Ex. I at USA3880). She indicated in her application that she was a United States citizen and did not speak any foreign languages. (Patterson Decl., Ex. I at USA3878, USA3882). On the written exam, Houser earned a score of 72. (Id. at USA3886). Two months after submitting her application, Houser received a 30-day Letter based on the results of her criminal background check. (Houser Dep. 73:18-20, 85:22-86:19). On May 21, 2009, the Census Bureau informed Houser that she had been disqualified because she “failed to provide the requested information within the 30[-]day window provided.” (Miazad Decl. I, Ex. 26). LCO staff members in Houser’s geographic region reviewed a total of eighty-four selection records after the date on which she applied. (Willis Decl. I, ¶ 44). Twenty-five of those selection records related to applicants with foreign language abilities. (Id. ¶ 45). The remaining fifty-nine selection records included candidates with test scores ranging from 70 to 105. (See id., Ex. A). Accordingly, had Houser passed the background check, her score would have been high enough to place her on at least one of
9

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 10 of 61
those selection records. However, none of the applicants ultimately hired from those selection records received exam scores lower than 78. (Id. ¶ 47).
2. Anthony Gonzalez Anthony Gonzalez (“Gonzalez”) is a Latino resident of Riverview, Florida. (Miazad Decl. I, Ex. 27 (“Gonzalez Dep.”) at 7:16-18). He is a United States citizen who speaks fluent Spanish. (Patterson Decl., Ex. N at USA3852, USA3855). Gonzalez applied for temporary employment with the 2010 Decennial Census in February 2010, and received a score of 92 on the qualifying exam. (Id. at USA3859). On or about March 11, 2010, Gonzalez received a 30-day Letter from the Census Bureau, to which he promptly responded. (Miazad Decl. I, Exs. 29, 30). Gonzalez nevertheless did not hear back from the Census Bureau. (Gonzalez Dep. 181:4-13). DAPPS generated a total of twenty-three selection records encompassing Gonzalez’s geocode after the date on which he applied. (Willis Decl. I, ¶ 86). Two of those selection records pertained to positions requiring fluency in Haitian-Creole or French. Candidates who appeared on the remaining selection records all earned scores of 93 or above on the qualifying exam, with the exception of a few applicants who qualified for veterans’ preferences. (See id., Ex. F). Gonzalez thus did not score high enough to have been listed on any of the selection records. 3. Ignacio Riesco Ignacio Riesco (“Riesco”) is a Latino resident of Orlando, Florida. (Miazad Decl. I, Ex. 31 (“Riesco Dep.”) at 22:16-19, 97:18-19). He applied for a temporary
10

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 11 of 61
position with the Census Bureau in April 2010. (Patterson Decl., Ex. P). In his application, Riesco indicated that he spoke fluent Portuguese and Spanish and was a lawful permanent resident, but not a United States citizen. (Id. at USA5595-96). Riesco received a score of 93 on the qualifying exam. (Willis Decl. I, ¶ 97).
After Riesco submitted his application, the Census Bureau sent him a 30day Letter based on the results of his background check. (Miazad Decl. I, Ex. 35). Within a few days of receiving the letter, Riesco sent a copy of the disposition of the criminal charges that had triggered the letter, showing that all charges had been dropped. (Riesco Dep. 91:22-24). Despite his compliance with the 30-day Letter’s directives, Riesco never heard anything further from the Census Bureau. (Id. at 122:2-7).
Because Riesco submitted his application near the end of the Census Bureau’s hiring period, the LCO in Riesco’s area generated only one selection record after he applied. (Willis Decl. I, ¶ 99). The lowest scoring candidate that appeared on that selection record received a score of 95 on the qualifying test. (See id., Ex. H). Riesco thus would not have appeared on that selection record, even if he had been deemed eligible for hire.
4. Precious Daniels Precious Daniels (“Daniels”) is an African-American resident of Detroit, Michigan. (Miazad Decl. I, Ex. 1 (“Daniels Dep.”) at 6:9-12, 156:5-8). She applied for temporary employment with the Census Bureau in January 2010. (Patterson Decl., Ex M). Although she apparently testified that she was willing to work forty hours per week
11

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 12 of 61
if necessary, her application stated that she would prefer to work twenty-eight hours per week. (Id. at USA3796). She further indicated that she did not speak any languages other than English. (Id.). Daniels received a score of 83 on her written test. (Willis Decl. I, ¶ 78).
On February 16, 2010, the Census Bureau sent Daniels a 30-day Letter based on the results of her background check. (Miazad Decl. I, Ex. 3). Daniels promptly submitted the requested information, but the Census Bureau rejected her application in March 2010 “based on the nature of the facts disclosed” in her response. (Id., Ex. 5).
LCOs encompassing Daniels’ geocode reviewed a total of thirty-four selection records after Daniels applied for employment with the Census Bureau. (Willis Decl. I, ¶ 79). Eleven of those records related to positions that required foreign language capabilities. (Id. ¶ 80). The remaining twenty-three selection records included candidates with test scores ranging from 72 to 107, some of whom, like Daniels, indicated a preference for working fewer than forty hours per week. (See id., Ex. E). Indeed, several applicants who scored below Daniels ultimately were hired from these selection records. (Id. at USA48405-06). According to the Census Bureau, however, none of the candidates hired from these selection records had both scored below Daniels on the qualifying exam and stated a preference for working fewer than forty hours per week. (Willis Decl. I, ¶ 83).
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Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 13 of 61
5. Felicia Rickett-Samuels Felicia Rickett Samuels (“Rickett-Samuels”) is an African-American woman who lives in Stamford, Connecticut. (Miazad Decl. I, Ex. 36 (“Rickett-Samuels Dep.”) at 6:8-12, 7:3-4). She applied for temporary employment with the 2010 Decennial Census on January 13, 2009, and received a score of 88 on her written exam. (Willis Decl. I, ¶ 50). Her application indicated that she was a United States citizen and did not speak any foreign languages. (Patterson Decl., Ex. J at USA44224, USA44227). Approximately two months after submitting her application, RickettSamuels received a 30-day Letter from the Census Bureau. (Miazad Decl. I, Ex. 40). She responded to that letter within the allotted time frame by providing a copy of a Certificate of Good Conduct and records from the Division of Criminal Justice Services related to the charges that triggered the letter. (Id., Ex. 38). Soon after Rickett-Samuels responded, the Census Bureau rejected her application based on the information she provided. (Rickett-Samuels Dep. 197:10-21). LCO staff members ran a total of twenty-two selection records encompassing Rickett-Samuels’ geocode after she applied. (Willis Decl. I, ¶ 51). Of those records, eleven were limited to applicants with foreign language abilities. (Id. ¶ 52). The remaining eleven selection records included candidates with scores ranging from 85 to 110. (See id., Ex. B). Rickett-Samuels’ score thus was high enough to have placed her on one of those selection records. Nonetheless, according to the Census
13

Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 14 of 61
Bureau, none of the applicants ultimately hired from those selection records scored below 97. (Id. ¶ 58).
6. Chynell Scott Chynell Scott (“Scott”) is an African-American resident of Philadelphia, Pennsylvania. (Miazad Decl. I, Ex. 41 (“Scott Dep.”) at 4:15-19, 14:23-24). She previously worked for the Census Bureau in various capacities in 2000 and 2004. (Id. at 53:2-57:23). In December 2009, she applied for a temporary position with the Census Bureau as part of the 2010 Decennial Census. (Id. at 76:9-13). Although the documents filed in this case do not indicate her test score, Scott apparently testified at her deposition that her score was approximately 100. In her application, Scott was asked whether, in the last ten years, she had ever been “convicted.” She responded “no.” (Patterson Decl., Exs. H at USA43462, K at USA43550). On December 16, 2009, the Census Bureau sent Scott a 30-day Letter based on the results of a background check that revealed a prior arrest record. (Miazad Decl. I, Ex. 44). She responded to that letter by submitting a “Case Summary” from the Pennsylvania Court of Common Pleas indicating that she had pleaded guilty to disorderly conduct approximately two months before she completed her Census application. (Id., Ex. 42). Scott later testified that she did not know that her guilty plea had resulted in a “conviction” because the judge had reduced her charges to a fine. (Scott Dep. 89:3-24). On February 3, 2010, the Census Bureau rejected Scott’s application “based on the nature of the facts [she] disclosed.” (Miazad Decl. II, Ex. 146).
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The selection records for Scott’s geographic region included candidates who scored between 70 and 102 on the qualifying exam. (See Willis Decl. I, Ex. C). With a score close to 100, Scott undoubtedly would have been listed on at least one of those selection records had she passed the criminal background check.
7. Vivian Kargbo Vivian Kargbo (“Kargbo”) is an African-American woman who lives in Boston, Massachusetts. (Miazad Decl. I, Ex. 14 (“Kargbo Dep.”) at 7:20-24, 12:16-17). She applied for a temporary position with the Census Bureau in March 2010. (Patterson Decl., Ex. O). In her application, Kargbo indicated that she was a lawful permanent resident of the United States and did not have any foreign language skills. (Id. at USA43530, USA43533). She received a score of 80 on her qualifying exam. (Id. at USA43537). On or about March 24, 2010, Kargbo received a 30-day Letter from the Census Bureau asking for further information regarding an arrest record that bore her name. (Miazad Decl. I, Ex. 18). Kargbo disputed the identity of the arrest record and sent the Census Bureau a copy of her fingerprints to support her challenge. (Id., Ex. 19). Kargbo never heard anything further from the Census Bureau despite her timely response to the 30-day Letter. (Kargbo Dep. 126:18-20). LCO staff members reviewed two selection records encompassing Kargbo’s geocode after the date of her application. (Willis Decl. I, ¶ 94). These two selection records included candidates with scores ranging from 92 to 105. (See id., Ex. G).
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Kargbo’s score of 80 thus would not have placed her on either selection record. The lowest-scoring applicant selected from these records earned a score of 97 on the written exam. (Id. ¶ 94).
8. Scotty Desphy Scotty Desphy (“Desphy”) is an African-American resident of Philadelphia, Pennsylvania. (Miazad Decl. I, Ex. 7 (“Desphy Dep.”) at 7:3-6, 19-23). She previously had worked for the Census Bureau during the 2000 Decennial Census, and applied again in December 2009. (Id. at 24:5-7, 25:15-17). Desphy initially earned a score of 75 on her qualifying exam. (Willis Decl. I, ¶ 68). After submitting her application and completing the exam, Desphy received a 30-day Letter based on the results of her background check. (Desphy Dep. 77:21-25, 79:2-7). Desphy responded to the 30-day Letter within the requisite time frame. (Miazad Decl. I, Ex. 10). She subsequently received an additional letter from the Census Bureau requesting a further explanation and two character references. (Id., Ex. 11). In response, Desphy sent the Census Bureau a letter detailing the circumstances of her arrest along with several letters of recommendation and a copy of her fingerprints. (Id., Ex. 12). In addition, she retook the written exam, increasing her score to 83. (Willis Decl. I, ¶ 68). Nevertheless, in March 2010, the Census Bureau rejected Desphy’s employment application “based on the nature of the facts disclosed” in her correspondence. (Miazad Decl. I, Ex. 13). LCO staff members reviewed a total of 123 selection records encompassing Desphy’s geocode after the date of her application. (Willis Decl. I, ¶ 69). Fifty-one of
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those selection records were limited to applicants with foreign language skills, which Desphy did not possess. (Id. ¶ 70). The remaining selection records included candidates with scores ranging from 70 to 100. (See id., Ex. D). Desphy’s score of 83 thus would have placed her on at least one of the selection records produced in her geographic region. According to the Census Bureau, however, no candidate with a score lower than 88 was hired from the selection records that did not require foreign language fluency. (Id. ¶ 75). II. Title VII Disparate Impact Framework
The Plaintiffs allege that the Census Bureau used racially discriminatory hiring procedures in violation of Title VII. As amended, Title VII prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. In addition to banning intentional employment discrimination, Title VII prohibits some employment practices “that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
To establish a prima facie case under a “disparate impact” theory of liability, Title VII plaintiffs first must show that their employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). The Second Circuit has described this provision as requiring plaintiffs to “(1) identify a specific employment practice or policy; (2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d
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Cir. 2012), cert denied, 133 S. Ct. 1724 (2013) (internal quotation marks and citations omitted).
Once plaintiffs have established a prima facie Title VII violation on a disparate impact theory, an employer may defend against liability by demonstrating that the challenged employment practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). Even if the employer meets that burden, plaintiffs may succeed if they can show that the employer has refused to adopt an available alternative employment practice that would reduce the level of disparate impact while still serving the employer’s legitimate needs. Id. §§ 2000e-2(k)(1)(A)(ii), (C).
If the trier of fact finds that the plaintiffs have established a Title VII violation on a disparate impact theory, each plaintiff seeking individual relief such as backpay “need only show that he or she suffered an adverse employment decision ‘and therefore was a potential victim of the proved . . . discrimination.’” Robinson v. MetroNorth Commuter R.R. Co., 267 F.3d 147, 159 (2d Cir. 2001) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 362 (1977)). The employer then may rebut the plaintiffs’ presumptive entitlement to backpay “by proving that the [plaintiff] would not have been hired even absent discrimination.” Cohen v. West Haven Bd. of Police Comm’rs, 638 F.2d 496, 502 (2d Cir. 1980). If the employer cannot make such a showing, or if the issue remains uncertain because the nature of the employer’s hiring practices makes it impossible to determine a “but for” outcome, the plaintiff is entitled to
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individualized relief, including backpay. Chin, 685 F.3d at 151-52; Cohen, 638 F.2d at 502.
In this case, the Plaintiffs claim that the 30-day Letter and the Adjudication Criteria had a disparate impact on African-American and Latino applicants, were not jobrelated or justified by business necessity, and were not the least discriminatory hiring protocols that the Census Bureau could employ to meet its business needs. The Plaintiffs contend that every putative class member thus is entitled to backpay. The Census Bureau disputes each of the Plaintiffs’ contentions. II. Motion to Dismiss for Lack of Subject-Matter Jurisdiction
A. Standard of Review The Census Bureau brings its motion to dismiss pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure.2 Under Rule 12(b)(1), a court must dismiss a complaint if the court lacks subject-matter jurisdiction over the claims asserted. In resolving the issue of subject-matter jurisdiction, a court is not limited to the face of the complaint and may consider evidence outside the pleadings. Phifer v. City of N.Y., 289 F.3d 49, 55 (2d Cir. 2002). The plaintiff has the burden of demonstrating the court’s subject-matter jurisdiction by a preponderance of the evidence. Id. (citing Makarova v.

2

Although challenges to plaintiffs’ standing sometimes are brought under Rule

12(b)(6), Rule 12(b)(1) is the more appropriate procedural mechanism for raising such a

challenge. See Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6

(2d Cir. 2006). The distinction between the two rules is important because a dismissal under

Rule 12(b)(6) is an adjudication on the merits with preclusive effect, while a dismissal under

Rule 12(b)(1) is not. Id. (citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3

(1981); Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996)).

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United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (“[J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.”).
B. Standing Under Article III of the Constitution, the subject-matter jurisdiction of
federal courts is limited to resolving “cases” and “controversies.” U.S. Const. art. III, § 2. Standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As the Supreme Court explained in Lujan:
the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-61 (citations, internal quotation marks, ellipses, and brackets omitted). The plaintiff carries the burden to establish these elements of constitutional standing, which are to be “evaluated at the time the complaint is filed.” Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condo., 458 F. Supp. 2d 160, 167 (S.D.N.Y. 2006); see also Disabled in Action of Metro. N.Y. v. Trump Int’l Hotel & Tower, No. 01 Civ. 5518 (MBM), 2003
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WL 1751785, at *7 (S.D.N.Y. Apr. 2, 2003) (“Events occurring after the lawsuit has been filed may be relevant to whether the claim has become moot but are not relevant to whether a plaintiff has standing in the first instance.”).
Article III’s standing requirements apply equally to class actions. As the Supreme Court has held, “if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendant[], none may seek relief on behalf of himself or any other member of the class.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974). To demonstrate standing, each of the named plaintiffs “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Warth v. Seldin, 422 U.S. 490, 502 (1975); see also Lewis v. Casey, 518 U.S. 343, 357 (1996) (Article III standing requirements are “no less true with respect to class actions than with respect to other suits”).
The Census Bureau contends that the named plaintiffs in this action lack Article III standing because they cannot show that (1) they have personally suffered any injury-in-fact as a result of the Census Bureau’s use of the 30-day Letter or its application of the Adjudication Criteria, or (2) the relief sought would redress their alleged injuries.
1. Injury-In-Fact In determining whether a plaintiff has suffered an injury-in-fact, courts must “assess whether the injury affect[s] the plaintiff in a personal and individual way, to confirm that the plaintiff has a personal stake in the controversy and avoid having the
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federal courts serve as merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding.” Baur v. Veneman, 352 F.3d 625, 632 (2d Cir. 2003) (citation and internal quotation marks omitted); see also Sullivan v. Syracuse Hous. Auth., 962 F.2d 1101, 1106 (2d Cir. 1992) (“[C]ourts generally should refrain from adjudicating abstract questions of wide public significance which amount to generalized grievances . . . .”) (internal quotation marks omitted).
Neither the Supreme Court nor the Second Circuit has expounded further on the meaning of the injury-in-fact requirement in Title VII cases. Several other circuit courts, however, have suggested that to establish an injury-in-fact, a Title VII plaintiff must at least demonstrate that he met the minimum qualifications for the position ultimately denied. See, e.g., Bates v. United Parcel Serv., Inc., 465 F.3d 1069, 1078 (9th Cir. 2006) (determining whether plaintiff was injured requires court to examine whether he was “qualified” for the position “in the sense that, aside from the [employment] standard he is challenging and all prerequisites connected to that standard, he meets the basic job requirements for the desired position”); Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451 (10th Cir. 1981) (to establish standing, Title VII plaintiffs must show that “they were qualified for the positions that they sought”); Jones v. Mukasey, 565 F. Supp. 2d 68, 81 (D.D.C. 2008) (same). As one court has put it, “we assume that an unqualified plaintiff was not hired or promoted for the obvious reason – that he was unqualified. Such a plaintiff would have no standing to sue under Title VII, for he could not claim that he was injured, much less affected,” by the allegedly discriminatory employment practice.
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Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 668 (7th Cir. 1996). Although there appears to be little, if any, authority in this Circuit addressing this “minimum qualification” requirement, the Plaintiffs do not dispute its validity. (See ECF No. 246 (Pls.’ Mem. of Law in Opp. to Mot. to Dismiss (“Pl.’s Dismissal Mem.”) at 18 (“Plaintiffs need only show that they met the basic job requirements for the job.”) (emphasis in original)).
The decisions applying a “minimum qualification” requirement are wellreasoned. Applicants who fail to meet the basic eligibility requirements for employment cannot demonstrate that they suffered a “particularized” personal injury by being denied such employment. Thus, an individual who did not satisfy the eligibility requirements for employment with the Census Bureau would lack constitutional standing to serve as a named plaintiff in a lawsuit challenging the Census Bureau’s allegedly discriminatory hiring practices.
That the named plaintiffs must establish their eligibility for hire, however, does not mean, as the Census Bureau contends, that they must show that they ultimately would have been hired. Rather, the Supreme Court has made clear that “[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, . . . [t]he ‘injury in fact’ . . . is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993); see also Connecticut v. Teal, 457 U.S. 440, 450 (1982) (“In considering claims of disparate impact . . . this Court has consistently
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focused on employment and promotion requirements that create a discriminatory bar to opportunities.”) (emphasis in original); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (denial of opportunity to compete for admission to university constitutes sufficient injury-in-fact, even if plaintiff ultimately may not have been admitted). Under that standard, a plaintiff seeking to establish standing “need not allege that he would have obtained the benefit but for the barrier,” but simply that the barrier “prevented [him] from competing on an equal footing.” Jacksonville, 508 U.S. at 666-67. Although that standard was announced in the equal protection context, it should, if anything, apply with even greater force in Title VII cases, since federal courts generally are less reluctant to overcome jurisdictional hurdles when faced with statutory, rather than constitutional, merits questions. Cf. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 82 n.4 (1993) (Stevens, J., dissenting) (“Jacksonville is, of course, an equal protection case, while respondents in this case are seeking a statutory benefit. If this distinction has any relevance . . . , then it should mitigate in favor of finding ripeness here; I assume we should be more reluctant to overcome jurisdictional hurdles to decide constitutional issues than to effectuate statutory programs.”).
The Census Bureau cites a number of cases from other circuits that allegedly support its standing argument. None of these cases, however, goes beyond requiring plaintiffs to show that they were eligible to be considered for the position. For example, in Melendez v. Illinois Bell Telephone Company, the Seventh Circuit noted that a Title VII plaintiff could satisfy the “qualification requirement” by showing that he met
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“all of the objective requirements” for the position he sought, regardless of whether he would have been considered for the position. 79 F.3d at 668, 669 n.8. In Rich v. Martin Marietta Corp., the Tenth Circuit “emphasize[d] that each plaintiff need not prove that he was the most qualified person,” so long as he could show that he was at least eligible to be considered for the position. 522 F.2d 333, 347-48 (10th Cir. 1975). And in Bates v. United Parcel Service, Inc., the Ninth Circuit held that the plaintiff had standing to challenge an allegedly discriminatory hiring test because his “qualifications [were] sufficient to allow him to proceed to the next step” of the hiring process. 465 F.3d 1069, 1078 (9th Cir. 2006) (internal quotation marks and brackets omitted). Neither these cases, nor any of the other cases cited by the Census Bureau, require a plaintiff to show that he would have made the employer’s final cut.
In sum, I find that the named plaintiffs must establish that they were eligible to be considered for the positions they sought, but need not further demonstrate that they would have been hired after being evaluated in comparison to other applicants. Thus, the question here is whether the Census Bureau’s allegedly discriminatory hiring practices placed any of the named plaintiffs on an unequal footing in terms of their ability to compete for employment.
Applying this standard, it is clear that five of the eight named plaintiffs – Houser, Daniels, Rickett-Samuels, Scott, and Desphy – have standing to sue under Title VII. It is undisputed that each of these class representatives possessed the bare minimum qualifications for employment with the Census Bureau: they all were older than eighteen,
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possessed Social Security numbers, and had scored above 70 on the qualifying exam. In addition, these plaintiffs all obtained scores within the range of scores that appeared on selection records in their geographic region. Thus, had these five applicants not been subjected to the allegedly discriminatory criminal background check process, they each would have appeared on at least one of the selection records for their geographic region. Simply by appearing on a selection record, these individuals would have had an opportunity (however slim) to compete for employment. Whether the Census Bureau likely would have reached their name on the rank-ordered selection record before it completed the hiring process makes no difference. These five plaintiffs have established that they were eligible to be considered for employment but were denied the opportunity to compete with other applicants. That showing is sufficient to confer standing under Title VII.
The three remaining named plaintiffs – Gonzalez, Riesco, and Kargbo – each obtained scores that fell below the range of scores on selection records in their geographic regions. Thus, even if they had passed the criminal background check without delay, they would not have appeared on any of the selection records and would not have been eligible to compete for employment. And although these applicants could have retaken the exam in an effort to improve their scores, they chose not to do so.3

3

The Plaintiffs argue that applicants who were eliminated from the hiring pool

based on the results of their criminal background check would have “had no reason or

opportunity to retake the test.” (Pl.’s Dismissal Mem. at 22). That logic does not apply to

Gonzalez, Riesco or Kargbo. These three applicants each responded to the 30-day Letter within

(continued...)

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Given their existing test scores, they could not have been considered for hire, regardless of the results of their background check. They consequently cannot demonstrate an injury-in-fact sufficient to prove Article III standing, and must be dismissed from this action.
2. Redressability Article III also requires plaintiffs to show that a favorable decision could redress their injuries. The Second Circuit has described redressability as the “non-speculative likelihood that the injury can be remedied by the requested relief.” W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008). In this case, the Plaintiffs request several forms of relief, including (a) a declaratory judgment that the Census Bureau’s criminal background check process violates Title VII; (b) preliminary and permanent injunctive relief enjoining the Census Bureau from “engaging in each of the unlawful policies, practices, customs and usages” set forth in the Second Amended Complaint; (c) an order directing the Census Bureau to use employment policies, practices and programs that eliminate the effects of its allegedly unlawful employment practices; and (d) backpay in the form of lost wages and lost
3(...continued) the allotted time frame, which, as the letter indicated, was sufficient to keep their application “active.” (Miazad Decl. I, Ex. 70 at USA 43538). Contrary to the Plaintiffs’ contention, nothing would have prevented them from retaking the exam while they awaited the results of their background checks.
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benefits.4 (See SAC ¶ 135-40). To satisfy the redressability prong, the putative class representatives each must show that at least one of these forms of relief would redress their alleged injuries.
In ruling on the Census Bureau’s first motion to dismiss this case, I determined that the declaratory and injunctive relief requested could redress the named plaintiffs’ alleged injuries. Johnson v. Bryson, 851 F. Supp. 2d 688, 700 (S.D.N.Y. 2012). The Census Bureau now urges the Court to revisit that decision, arguing that the named plaintiffs’ injuries could not be redressed by the requested relief because each named plaintiff was “precluded from selection for reasons entirely independent of the challenged policies and procedures.” (ECF No. 226 (Def.’s Mem. of Law in Supp. of Mot. to Dismiss) at 25). In repeating this refrain, the Census Bureau essentially has just repackaged its arguments related to the named plaintiffs’ injuries-in-fact; it has said nothing about whether the requested injunction would redress those injuries. Assuming that the named plaintiffs did suffer cognizable injuries as a result of the Census Bureau’s allegedly discriminatory hiring practices, they certainly would be entitled to – and their injuries could be redressed by – the requested injunctive and declaratory relief. The Census Bureau’s redressability argument concerning injunctive relief therefore fails with respect to the five named plaintiffs who satisfy the injury-in-fact requirement.

4

The Plaintiffs also seek to recover costs, attorneys’ fees, and interest. This

element of the Plaintiffs’ prayer for relief, standing alone, plainly would not satisfy the

redressability requirement. As the Supreme Court has made clear, “a plaintiff cannot achieve

standing to litigate a substantive issue by bringing suit for the cost of bringing suit.” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 107 (1998).

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The named plaintiffs’ alleged injuries also may be redressed through an award of backpay. As both parties agree, members of a Title VII class in this Circuit are presumptively entitled to backpay. See Cohen, 638 F.2d at 502. To establish this presumptive entitlement to backpay, a Title VII plaintiff need only establish that he applied for the job and was not hired. Ass’n Against Discrimination in Emp’t, Inc. v. City of Bridgeport, 647 F.2d 256, 289 (2d Cir. 1981). The named plaintiffs plainly have made such a showing.
As the Census Bureau correctly notes, an employer may rebut a claimant’s prima facie claim of entitlement to backpay by “proving that the class member would not have been hired even absent discrimination.” Id. This might arise, “for example, because no vacancies existed or because the claimant failed to meet nondiscriminatory prerequisites for employment.” Id. In an attempt to make the requisite showing, the Census Bureau once again reiterates its view that the named plaintiffs ultimately would not have been hired, and therefore are not entitled to backpay. Again, this argument speaks to whether the named plaintiffs have suffered an injury-in-fact sufficient to confer Article III standing, not to whether that injury is redressable by backpay. At the risk of sounding like a broken record, that the named plaintiffs ultimately may not have been hired is of no consequence insofar as standing is concerned, so long as they can show, as five have here, that they met the prerequisites for employment with the Census Bureau and could have been considered based on their test scores.
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Because Houser, Daniels, Rickett-Samuels, Scott, and Desphy each can demonstrate that they suffered an injury-in-fact that can be redressed by a favorable disposition, they have standing to proceed as class representatives. Accordingly, the Census Bureau’s motion to dismiss this action in its entirety must be denied. As noted above, however, Gonzalez, Riesco and Kargbo lack standing to pursue this action. Accordingly, their claims must be dismissed for lack of subject matter jurisdiction. IV. Class Certification
Since Houser, Daniels, Rickett-Samuels, Scott, and Desphy have individual standing to bring this suit, the Court must consider whether the action should be certified as a class action under Rule 23 of the Federal Rules of Civil Procedure. The Rule 23 class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). Rule 23 permits named plaintiffs to proceed on behalf of a class of absent class members in three distinct situations: (a) when the rights of either the potential class members or the party opposing the class would be harmed by piecemeal litigation, Fed. R. Civ. P. 23(b)(1); (b) where the class seeks injunctive or declaratory relief against a party who has “acted or refused to act on grounds that apply generally to the class,” Fed. R. Civ. P. 23(b)(2); and (c) where (i) questions common to the class predominate over individual questions and (ii) class adjudication would be superior to other available methods of resolving the controversy, Fed. R. Civ. P. 23(b)(3). This last category encompasses cases in which class adjudication would “achieve economies of time, effort,
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and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Fed. R. Civ. P. 23(b)(3) advisory committee notes (1966).
The Plaintiffs urge the Court to take a “hybrid approach” to the certification process by applying different provisions of Rule 23 to different stages of the litigation. For purposes of determining the Census Bureau’s liability and affording classwide injunctive relief, the Plaintiffs request that the Court certify a class under Rule 23(b)(2) consisting of “all African American and Latino applicants who applied for temporary employment during the 2010 decennial and were harmed by . . . [the Census Bureau’s] use of the 30-day [L]etter as a screening device[,] . . . [the Census Bureau’s] use of adjudication criteria to screen applicants,” or both. (Pls.’ Class Cert. Mem. at 26). For the monetary damages phase, the Plaintiffs request certification of several subclasses under Rule 23(b)(3), which would include: (a) individuals barred from employment “based solely on the procedural requirements imposed by the 30-day [L]etter;” (b) individuals barred from employment “based solely on the delay in adjudicating” their applications; and (c) individuals barred from employment “based on exclusions that are not job related.” (Id.). The Plaintiffs contend that this hybrid approach is appropriate because once liability is determined, calculation of damages will be largely formulaic. (See Pls.’ Class Cert. Mem. at 27, 38).
As an alternative to this hybrid approach, the Plaintiffs propose that the Court exercise its discretion under Rule 23(c)(4) to isolate the liability and injunctive
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relief questions, certify a single class under Rule 23(b)(2) to address those issues, and leave damages calculations for individualized hearings. (Id. at 44-45).
Because both the proposed liability class and the proposed damages subclasses must independently meet all the requirements of Rule 23, I will consider them separately.
A. Proposed Liability Class 1. Rule 23(a) To certify the proposed liability class, the Court must first be satisfied that
the Plaintiffs have met the requirements of Rule 23(a) by establishing that “(a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of law or fact common to the class, (c) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (d) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). As set forth below, the Plaintiffs have met their burden in this regard.
a. Numerosity Rule 23(a)(1) requires the Plaintiffs to demonstrate that the proposed class is so numerous that joinder of all class members would be “impracticable.” “Generally, a class composed of more than forty members satisfies the numerosity requirement.” See Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004). Although plaintiffs bear the burden of proving numerosity, they “need not present a precise calculation of the number of class members,” and a court may rely on reasonable inferences from available
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facts in drawing its conclusion. Id. (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993); McNeill v. N.Y.C. Hous. Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1989)).
Although they have not ascertained the exact size of the putative class, the Plaintiffs indicate that there are thousands of minority class members who were barred from employment because of the Census Bureau’s allegedly discriminatory hiring practices. Indeed, the Plaintiffs’ experts estimate that more than 250,000 AfricanAmerican and 200,000 Latino applicants received a 30-day Letter. (ECF No. 166, Ex. C (Decl. of Mark Bendick, Jr., dated June 28, 2013), ¶ 32). They further estimate that less than one percent of all applicants who received 30-day Letters ultimately were hired. (Id., Ex. A (Decl. of Maria Kozhevnikova, dated June 28, 2013) at Table 1). It therefore is obvious that the proposed liability class would contain far too many individuals to manage under the typical joinder rules. Indeed, the Census Bureau does not appear to dispute that conclusion.
b. Commonality Commonality requires plaintiffs to show that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The “Rule does not require that all questions of law or fact raised in the litigation be common[;] . . . indeed, even a single question of law or fact common to the members of the class will satisfy the commonality requirement.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2562 (2011) (internal quotation marks, brackets, and citations omitted).
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To satisfy the commonality requirement, the lead plaintiffs in a putative class action must demonstrate that all of the class members “have suffered the same injury.” Dukes, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). As the Supreme Court recently stated in Dukes, “[t]his does not mean merely that [the plaintiffs must] have all suffered a violation of the same provision of law . . . . Their claims must depend upon a common contention . . . of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. In other words, a properly certified class action must not only raise common questions, but must have the “capacity . . . to generate common answers.” Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
The plaintiffs in Dukes sought certification of a nationwide class of current and former female Wal-Mart employees alleging gender discrimination with respect to pay and promotions. The Court ultimately determined that the plaintiffs had not satisfied the commonality requirement because Wal-Mart did not use a uniform “testing procedure or other companywide evaluation” in making pay and promotion decisions, but rather left those decisions to regional managers’ discretion. Id. at 2553. This discretion, the Court determined, was “just the opposite of a uniform employment practice that would provide commonality.” Id. at 2554.
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Dukes unquestionably “upped the ante on ‘commonality’” for plaintiffs challenging employers’ allegedly discriminatory subjective decisionmaking. Haddock v. Nationwide Fin. Servs., Inc., 293 F.R.D. 272, 279 (D. Conn. Sept. 6, 2013). What distinguishes this case from Dukes, however, is the fact that the Census Bureau, unlike Wal-Mart, employed uniform, non-discretionary hiring instruments – the 30-day Letter and the Adjudication Criteria – to exclude applicants from the hiring pool. Addressing this very situation, the Dukes court made clear that when an employer uses the same “testing procedure to evaluate [all] applicants for employment,” “a class action on behalf of every applicant or employee who might have been prejudiced” by the allegedly biased procedure “clearly would satisfy the commonality” requirement. Dukes, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.15).
The fact that the Census Bureau conducted its hiring efforts out of a series of regional offices, admittedly, adds a slight wrinkle to the commonality analysis. As the Census Bureau emphasizes, applicant characteristics and the rate at which they received 30-day Letters varied from one LCO to the next. The commonality requirement, however, does not require that all class members’ circumstances be identical, so long as their claims can be proven or disproven on a classwide basis. Here, notwithstanding the potential variance among LCOs, commonality will exist at the very least if it is possible to prove either that (i) the challenged hiring practices had a disparate impact on minority applicants across all LCOs, or (ii) the challenged hiring practices had no disparate impact in any LCO. In addition, commonality will exist if the Census Bureau has defenses that
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apply to all applicants in all LCOs, or if the Plaintiffs can rebut those defenses on a similar classwide basis.
Contrary to the Census Bureau’s contentions, both sides here appear to agree that the central questions in this case each have a common, classwide answer; the only point on which the parties disagree is the answers themselves. For example, to answer the disparate impact question, the Plaintiffs have submitted an expert report from labor economist Dr. Marc Bendick, Jr., which suggests that the Census Bureau’s hiring procedures adversely affected African-American and Latino applicants nationwide. (ECF No. 166, Ex. C). The Census Bureau disputes the validity of Dr. Bendick’s analyses, and in response has proffered the report of their own statistical expert, Dr. Bernard Siskin. Dr. Siskin’s report highlights the statistical differences among LCOs and criticizes Dr. Bendick for his failure to control for those differences in his study. Critically, however, upon examining the results by individual locality, Dr. Siskin concludes that the challenged practices had no statistically significant disparate impact in any LCO. (See ECF No. 201, ¶¶ 50-51). Thus, both experts agree that there is one nationwide answer to the question of disparate impact.
This case also presents a common question as to whether the Census Bureau’s allegedly discriminatory criminal background procedures were justified by legitimate business needs. To answer this question, the Census Bureau has submitted the expert report of Dr. James Outtz, an industrial-organizational psychologist, who defends the agency’s hiring procedures on the grounds that they were necessary to gain public
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trust and minimize public safety risks. (ECF No. 202). The Plaintiffs, in turn, have submitted a report from their own industrial-organizational expert, Dr. Kathleen Lundquist, to dispute those defenses. (ECF No. 166, Ex. B). Once again, a single nationwide answer to this question seems likely.
In the end, though both sides have spent a great deal of energy arguing the validity of their experts’ analyses, the Court need not resolve such “battles of the experts” at this juncture. The question at this preliminary stage of the litigation is not whether the challenged hiring procedures actually had a disparate impact or were justified by business necessity, but merely whether those questions can be resolved on a classwide basis. See In re Magnetic Audiotape Antitrust Litig., No. 99 Civ. 1580 (LMM), 2001 WL 619305, at *4 (S.D.N.Y. June 1, 2001) (“[O]n a motion for class certification, the Court only evaluates whether the method by which plaintiffs propose to prove class-wide impact could prove such impact, not whether plaintiffs in fact can prove class-wide impact.”); see also In re Aftermarket Auto. Lighting Prods. Antitrust Litig., 276 F.R.D. 364, 373-74 (C.D. Cal. 2011) (post-Dukes case concluding that courts “need not cho[o]se between experts” at the class certification stage because inquiry is limited to determining whether merits issues can be resolved through “generalized proof common to the class” ) (internal citations omitted). Although the experts obviously reach different conclusions regarding the merits in this case, the fact that both sides’ experts are able to provide classwide answers to the liability question suffices to satisfy the commonality requirement.
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In reaching this conclusion, I am mindful that class certification questions often may overlap with questions related to the merits of plaintiffs’ underlying claims, and that the Court’s duty to perform a “rigorous analysis” of the issues pertaining to certification is not lessened by this overlap. Dukes, 131 S. Ct. at 2551-52 (quoting Falcon, 457 U.S. at 161). Nonetheless, a district court has the obligation to “assure that a class certification motion does not become a pretext for a partial trial of the merits,” and thus “should not assess any aspect of the merits unrelated to a Rule 23 requirement.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006). Here, the evidence strongly suggests that the Plaintiffs’ liability claims are capable of classwide resolution. It therefore would be inappropriate for me to opine as to the validity of the experts’ merits conclusions at this preliminary stage.5
Of course, as this litigation unfolds, further expert testimony may show that the differences among the various hiring regions were so significant as to preclude classwide determination of the liability question. Should that occur, the Court will have to revisit the commonality issue to determine whether it is possible to create subclasses for different LCOs and to appoint class representatives for each subclass. See Fed. R.

5

After filing its opposition to the Plaintiffs’ motion for class certification, the

Census Bureau filed a separate motion in limine to exclude the testimony of Dr. Lundquist for

purposes of class certification. (ECF No. 207). In that motion, the Census Bureau contends that

Dr. Lundquist used a flawed methodology to reach her conclusions regarding the “job-

relatedness” of the Census Bureau’s hiring procedures, and failed to conduct any analysis to

support her assertions regarding adverse impact. Because it is unnecessary to consider the

substance of Dr. Lundquist’s conclusions in order to resolve the class certification motion, the

concerns raised in the Census Bureau’s motion in limine are moot.

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Civ. P. 23(c)(1)(c) (court may alter or amend certification order at any time before final judgment); 23(c)(5) (court may divide certified class into subclasses, each to be treated as a separate class under Rule 23). The mere possibility that this might prove necessary, however, is not an obstacle to certifying a single nationwide class at this stage. See In re Omnicom Grp., Inc. Secs. Litig, No. 02 Civ. 4483 (RCC), 2007 WL 1280640, at * 8 (S.D.N.Y. Apr. 30, 2007) (if common liability issues later “metastasize into markedly different questions of law and fact, the Court has the option” to amend the certification order or create subclasses “at a later time”); see generally Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d Cir. 2001) (“[T]he district court is often in the best position to assess the propriety of the class and has the ability . . . to alter or modify the class, create subclasses, and decertify the class whenever warranted.”).
In sum, I find that the proposed liability class satisfies the commonality requirement of Rule 23(a). Each of the proposed class members’ claims raises at least one common question: whether the 30-day Letter, the Adjudication Criteria, or both, were racially biased. That question has the capacity to “generate common answers that will drive the resolution of the litigation.” Dukes, 131 S. Ct. at 2551. If it ultimately is determined, as the Census Bureau contends, that neither the 30-day Letter nor the Adjudication Criteria had a disparate impact on minority applicants, then the claims of every class member, whether for damages, injunctive relief, or both, will fail and the Court will enter judgment in favor of the Census Bureau – “a course [the Census Bureau] should welcome, as all class members . . . [then] would be bound by the judgment.”
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Butler v. Sears, Roebuck and Co., 727 F.3d 796, 799 (7th Cir. 2013), cert denied, 134 S. Ct. 1277 (2014). If, however, disparate impact is found, then the class members’ claims will go forward.
c. Typicality Rule 23(a) further requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” This requirement is satisfied when the lead plaintiffs’ claims arise from the same series of events and find support in the same legal theories as the claims of all of the remaining class members. In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992); In re Prudential Secs. Inc. Ltd. P’ships Litig., 163 F.R.D. 200, 207-08 (S.D.N.Y. 1995). “Typicality . . . does not require that the situations of the named representatives and the class members be identical,” In re Oxford Health Plans, Inc. Secs. Litig., 199 F.R.D. 119, 123 (S.D.N.Y. 2001), but merely that the class representatives have the “incentive to prove all the elements of the cause of action which would be presented by the individual members of the class were they initiating individualized actions,” In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510 (S.D.N.Y. 1996). The “crux” of the typicality requirement is simply to “‘ensure that ‘maintenance of a class action is economical and that the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (quoting Falcon, 457 U.S. at 157 n.13) (brackets omitted).
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The Plaintiffs claim that the Census Bureau’s hiring practices had a disparate impact on both African-American and Latino applicants, and seek to certify a single liability class that includes applicants belonging to both minority groups. Although both groups assert the same disparate impact theory, they will rely on separate sets of statistical data to support their claims. Accordingly, an African-American plaintiff’s claims will not be typical of a Latino plaintiff’s claims, and vice versa. Thus, to satisfy the typicality requirement for the proposed class as a whole, the named plaintiffs must include both African-American and Latino individuals. Here, however, the only two Latino class representatives named in the Second Amended Complaint – Gonzalez and Riesco – must be dismissed from the suit on standing grounds. Consequently, the absent Latino class members presently have no representative who can fairly and adequately represent their interests in this litigation. Since the remaining named plaintiffs’ claims are not typical of the claims that would be raised by absent Latino class members, it would be inappropriate to certify a class that includes Latino applicants. The proposed class definition therefore must be amended – at least temporarily – to exclude Latino class members. If, however, the Plaintiffs are able to find a Latino representative who satisfies Article III’s standing requirements, they may move to amend their complaint to assert that individual’s claims. At that time, the Court would have discretion to amend the class definition to include Latino class members. See Fed. R. Civ. P. 23(c)(1)(c) (“An order that grants or denies class certification may be altered or amended before final judgment.”).
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Turning to the remaining named plaintiffs, the typicality inquiry centers on whether their legal challenges are based on the same factual circumstances that would be raised by absent class members. The Census Bureau first contends that the Plaintiffs cannot satisfy the typicality requirement in this regard because the proposed liability class challenges both the 30-day Letter and the Adjudication Criteria, but no single named plaintiff was injured by both hiring instruments. In the Census Bureau’s view, the claims of those class representatives who responded to the 30-day Letter and ultimately were excluded based on the Adjudication Criteria are not typical of those class members who never responded, or whose responses were untimely. In that same vein, the Census Bureau argues that those who did not respond to the 30-day Letter do not have claims that are typical of those who did but later were excluded based on the Adjudication Criteria.6

6

The Census Bureau also argues that none of the named plaintiffs’ claims are

typical of those who were excluded based on the use of non-job-related Adjudication Criteria.

To support this contention, the Census Bureau points to deposition testimony from the Plaintiffs’

expert, Dr. Lundquist, who conceded that the offenses committed by the named plaintiffs who

were excluded in the adjudication phase were “job-related” in a technical sense, but occurred too

far in the past to have had an effect on the applicant’s current qualifications. (ECF No. 203

(Def.’s Mem. of Law in Opp. to Mot. for Class Cert. (“Def.’s Class Cert. Mem.”)) at 34-35).

This argument is unavailing. The Plaintiffs here challenge not only the Adjudication Criteria,

but also the time frames within which they applied. The fact that some named plaintiffs may

have, at one point in their history, committed “job-related offenses” does not weaken their claim

that they were excluded for reasons that would have no effect on their job qualifications. Cf.

Green v. Mo. Pac. R. Co., 523 F.2d 1290, 1298 (8th Cir. 1975) (“We cannot conceive of any

business necessity that would automatically place every individual convicted of any offense . . .

in the permanent ranks of the unemployed. . . . To deny job opportunities to these individuals

because of some conduct which may be remote in time . . . is an unnecessarily harsh and unjust

burden.”). The claims raised by the named plaintiffs who were excluded at the adjudication

phase thus are typical of the class claims related to the use of the Adjudication Criteria.

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In this case, it would be impossible for a single plaintiff to have been legally “harmed” by both the 30-day Letter and the Adjudication Criteria. Those who either did not respond, or failed to respond in a timely manner, to the 30-day Letter were never subjected to the Adjudication Criteria, and those who were subjected to the Adjudication Criteria necessarily must have responded to, and therefore suffered no harm by virtue of the 30-day Letter. The fact that no single named representative has claims that are perfectly typical of all other class members does not, however, defeat typicality, so long as the named plaintiffs collectively satisfy the requirement. See, e.g., Ray M. v. N.Y. Bd. of Educ., 884 F. Supp. 696, 706 (E.D.N.Y. 1995) (to satisfy the typicality prong, “the named plaintiffs [must], ‘in the aggregate, assert all of the claims asserted on behalf of class members’”) (quoting Kenavan v. Empire Blue Cross and Blue Shield, No. 91 Civ. 2393 (KMW), 1993 WL 128012, at *4 (S.D.N.Y. Apr. 19, 1993)).
Here, the factual circumstances raised by Houser, Daniels, Rickett-Samuels, Scott, and Desphy collectively satisfy the typicality requirement with respect to all African-American putative class members. Together, this group includes one individual who was harmed by the use of the 30-day Letter as a screening device (Houser), and four individuals who were harmed by the allegedly discriminatory Adjudication Criteria (Daniels, Rickett-Samuels, Scott, and Desphy). At least with respect to the issues of liability and injunctive relief, the class as a whole will prevail if these representatives can prove at trial that both the 30-day Letter and the Adjudication Criteria had a disparate impact on African-American applicants. If only portions of that claim succeed – for
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example, if the Court finds that the 30-day Letter had a disparate impact on AfricanAmerican applicants but the Adjudication Criteria did not – it will have the discretion to create subclasses for purposes of fashioning injunctive relief. The important question at this stage simply is whether the interests of unnamed class members will be fairly and adequately represented by those who litigate their claims in court. “At bottom, the typicality requirement concerns the fairness of allowing an entire class’s claim[s] to rise or fall with the fate of the named representative[s’] claims; thus, th[ose] representative[s’] claims must be typical of the class so as to prevent a false prophet from bearing the standard for an entire class of claims.” Rapcinsky v. Skinnygirl Cocktails, LLC, No. 11 Civ. 6546 (JPO), 2013 WL 93636, at *5 (S.D.N.Y. Jan. 9, 2013). Viewing the claims of Houser, Daniels, Rickett-Samuels, Scott, and Desphy in the aggregate, there is no reason to believe that any absent African-American class members’ claims will go unrepresented during the liability phase of the litigation.
The Census Bureau also contends that the individualized nature of the adjudication process precludes any of the named plaintiffs who were excluded during the adjudication phase from establishing typicality. This argument is equally untenable. Although the adjudication process may have involved “individualized” considerations in the sense that each applicant was evaluated on the basis of that individual’s specific criminal history, the same set of objective Adjudication Criteria applied to all applicants nationwide, and those Adjudication Criteria required that LCO staff members automatically exclude applicants who had committed certain crimes without any further
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“individualized” consideration. At the liability phase, the Plaintiffs will need to prove only that those Adjudication Criteria disproportionately impacted African-American applicants and were not justified by business necessity. The individualized nature of each class member’s criminal background will have no effect on these two inquiries.
Finally, the Census Bureau contends that the claims of one of the named plaintiffs, Chynell Scott, are not typical of those asserted by other putative class members because, according to the Census Bureau, Scott was not deemed ineligible because she failed the adjudication phase, but because she misrepresented facts in her initial application. In the Census Bureaus’s view, the “unique defense” that it might have with respect to Scott’s claim renders that claim atypical of other proposed class members’ claims. (Def.’s Class Cert. Mem. at 35-36).
Although the Census Bureau’s unique defense to Scott’s claim may prove meritorious, it would not defeat typicality unless it truly “threaten[ed] to become the focus of the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 59 (2d Cir. 2000) (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (internal citation omitted). Particularly with respect to the liability and injunctive relief phases, the potential defense against Scott’s claims will have little if any relevance to the outcome of the litigation. So long as some of the class representatives can succeed in proving disparate impact and lack of business justification, the class claims for liability and injunctive relief will prevail. Accordingly, this challenge, too, must fail.
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d. Adequacy To satisfy the adequacy requirement of Rule 23, “[i] there should be no conflict between the interests of the class and the named plaintiff[s] nor should there be collusion among the litigants; and [ii] the parties’ attorney[s] must be qualified, experienced, and generally able to conduct the proposed litigation.” Jolly Roger Offshore Fund Ltd. v. BKF Capital Grp., Inc., No. 07 Civ. 3923 (RWS), 2007 WL 2363610, at *5 (S.D.N.Y. Aug. 16, 2007) (quoting, inter alia, Jackson v. Foley, 156 F.R.D. 538, 543 (E.D.N.Y. 1994)). The Census Bureau understandably does not dispute the qualifications of the team of lawyers representing the Plaintiffs. Class Counsel in this case includes the law firm of Outten & Golden, as well as attorneys from various public interest groups including the Center for Constitutional Rights, Community Legal Services of Philadelphia, Community Service Society and LatinoJustice PRLDEF of New York, the Indian Law Resource Center of Helena, Montana, and the Lawyers’ Committee for Civil Rights and Public Citizen Litigation Group of Washington, D.C. Collectively, these attorneys bring to the case a wealth of class action litigation experience, much of which relates to claims of employment and race discrimination. Moreover, this team has devoted at least four years of time and substantial resources to litigating this case. There is no reason to believe that they cannot provide adequate legal representation to the Plaintiffs.
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The Census Bureau does, however, dispute the named plaintiffs’ adequacy to serve as class representatives. Specifically, the Census Bureau contends that the named plaintiffs have a weak incentive to litigate the issue of liability on behalf of the proposed class because none of them would have been hired had they passed the criminal background check and, therefore, none has a viable backpay claim. This contention, reminiscent of the Census Bureau’s standing arguments, is unpersuasive.
A plaintiff is not disqualified as class representative simply because “he may fail to prove his case or [because] the defendant may have good defenses.” Robinson v. Sheriff of Cook Cnty., 167 F.3d 1155, 1158 (7th Cir. 1999) (emphasis in original). Only if the named plaintiff’s claim is a “clear loser” should he be excluded on adequacy grounds. Id. Whether the named plaintiffs in this case would have been hired in the absence of discrimination is a question that will arise only if there is a finding in favor of the Plaintiffs at the liability stage. At this preliminary stage of the litigation, the Court could do no more than speculate as to whether the Census Bureau would have hired any of the proposed representatives. Thus, even if that were the proper inquiry when deciding a plaintiffs’ entitlement to monetary damages, one could not say at this stage that the named plaintiffs have a weak incentive to litigate the issue of liability. If anything, they may have a more powerful incentive to litigate their claims vigorously, since their claims may require stronger proof than those of applicants who unquestionably would have been hired but for the allegedly discriminatory practices. The fact that their
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damages claims ultimately may fail does not preclude them from serving as adequate representatives of the liability class.
In sum, I find that a liability class consisting, at least for the moment, solely of African-American claimants satisfies all of the prerequisites to class certification under Rule 23(a).
2. Rule 23(b) In addition to meeting the requirements of Rule 23(a), the Plaintiffs also must show that the proposed class satisfies at least one of the three alternative bases for a class action set forth in Rule 23(b). At the liability and injunctive relief stages, the Plaintiffs ask the Court to certify a single class under Rule 23(b)(2), consisting of “all African American and Latino applicants who applied for temporary employment during the 2010 decennial and were harmed by . . . [the Census Bureau’s] use of the 30-day [L]etter as a screening device[,] . . . [or the Census Bureau’s] use of adjudication criteria to screen applicants,” or both. (Pls.’ Class Cert. Mem. at 26). Rule 23(b)(2) allows class treatment in situations where the alleged wrongdoer “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.” The fundamental characteristic of a class properly certified under Rule 23(b)(2) is “the indivisible nature of the injunctive or declaratory remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 131 S. Ct. at
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2557 (quoting Nagareda, supra, at 132). Rule 23(b)(2) thus applies “when a single injunction or declaratory judgment would provide relief to each member of the class.” Id. Civil rights class actions charging parties with unlawful, class-based discrimination are “prime examples” of the type of case encompassed by Rule 23(b)(2). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
Insofar as the Plaintiffs seek injunctive relief, they plainly satisfy the requirements of Rule 23(b)(2). In the event that the Court determines that the challenged hiring procedures had a disparate impact on minority applicants, there are a number of injunctive and declaratory remedies that the Court could order that would apply equally to all class members. For example, the Plaintiffs suggest that the Court could issue a decree enjoining the use of the 30-day Letter and mandating that the Census Bureau revise its Adjudication Criteria to ensure a more comprehensive, job-related screening process. At this stage in the litigation, it is not necessary to speculate about the precise contours of such relief. All that matters is that the Court has the equitable power and the practical ability to fashion some form of injunctive or declaratory relief that would apply to all members of the proposed (b)(2) class. There is no reason to believe that the Court will be unable craft such an appropriate remedy if and when it reaches that stage.
The Census Bureau contends that the Plaintiffs’ claims for injunctive relief cannot be certified under Rule 23(b)(2) because the proposed class is “not ‘sufficiently cohesive to warrant adjudication by representation.’” (Def.’s Class Cert. Mem. at 39 (quoting Blackman v. District of Columbia, 633 F.3d 1088, 1094 (D.C. Cir. 2011))).
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Specifically, the Census Bureau argues that every putative class member would have had a different subjective reaction to the 30-day Letter and that those who responded to it were individually adjudicated based on their “infinitely different criminal histories.” (Id.). In the Census Bureau’s view, these individual differences destroy class “cohesiveness,” making class treatment inappropriate under Rule 23(b)(2). (Id. at 39-40).
Although class “cohesiveness” is not expressly required by the text of Rule 23(b)(2) or Supreme Court precedent interpreting that rule, some lower courts have denied certification on cohesiveness grounds due to the individualized nature of the injunctive relief that would be necessary to remedy each class member’s injuries. For example, courts have raised cohesiveness concerns in mass tort cases in which plaintiffs’ claims for injunctive relief include requests for future medical monitoring, since the need and desire for such monitoring would vary among individual class members. See, e.g., Gates v. Rohm & Haas Co., 655 F.3d 255, 264 (3d Cir. 2011); Barnes v. Am. Tobacco Co., 161 F.3d 127, 146 (3d Cir. 1998); In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 75 (S.D.N.Y. 2002); see also Amchem, 521 U.S. at 625 (acknowledging concern over Rule 23(b)(2) certification in “‘mass accident’ cases[, which] are likely to present ‘significant questions, not only of damages but of liability and defenses of liability, . . . affecting the individuals in different ways.’”) (quoting Fed. R. Civ. P. 23 advisory committee notes (1966)). Notably, however, even those cases do not suggest that class members all must have suffered the exact same injury in the exact same way. The cohesiveness element merely requires that plaintiffs’ legal injuries be similar enough that
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they all can be remedied with a single “indivisible” injunction. See Barnes, 161 F.3d at 143 n.18 (cohesiveness requirement exists because (b)(2) actions are intended to remedy “group, as opposed to individual injuries”). Although it may be true that the putative class members all had different reactions to the 30-day Letter, or that the Census Bureau individually adjudicated all class members who responded to the 30-day Letter, these differences do not affect the Court’s ability to craft an injunction that would remedy all of the eligible class members’ injuries in one fell swoop.
It bears mention that the proposed (b)(2) class, as currently defined, may ultimately encompass individuals who are not entitled to injunctive or declaratory relief. For example, the proposed class includes some individuals who allegedly were harmed only by the 30-day Letter, and some who allegedly were harmed only by the Adjudication Criteria. If only one of these two challenged hiring instruments is found to have disparately impacted minority applicants, those who fall outside the category of adversely-affected applicants will not be entitled to any relief, injunctive or otherwise. Should that occur, the Court will retain the power to amend the certification order, create subclasses that carve out class members who are entitled to relief, and craft injunctive relief accordingly. See Fed. R. Civ. P. 23(c)(1)(c), (c)(5); see also In re Sumitomo, 262 F.3d at 139 (noting the Second Circuit’s “longstanding view that the district court . . . has the ability . . . to alter or modify the class, create subclasses, and decertify the class whenever warranted”). That this course of action may prove necessary in the future does not preclude certification at this early stage.
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Accordingly, I find that a class limited to African-American applicants may be maintained under Rule 23(b)(2) for purposes of determining liability and affording injunctive and declaratory relief.
B. Proposed Damages Subclasses: Rule 23(b)(3) If the trier of fact ultimately concludes that the Census Bureau’s hiring
procedures had a disparate impact on minority applicants, the Court then will move on to the remedial phase of the case to determine the Plaintiffs’ entitlement to damages. At this stage, the Plaintiffs propose that the Court certify three separate subclasses, each of which must independently satisfy all of the prerequisites of Rule 23(a) and at least one of the provisions of Rule 23(b). See Fed. R. Civ. P. 23(c)(5) (“[A] class may be divided into subclasses that are each treated as a class under this rule.”). The Plaintiffs request that the Court certify each of the damages subclasses under Rule 23(b)(3), which requires both that the proposed class members share common questions that are capable of generating common answers, and that those common questions “predominate over any questions affecting only individual members.”7 Fed. R. Civ. P. 23(b)(3). As the Supreme Court has noted, although the “same analytical principles” govern both Rule 23(a) and Rule 23(b), “Rule 23(b)(3)’s predominance criterion is even more demanding than [the commonality

7

The Plaintiffs do not seek certification of the damages subclasses under Rule

23(b)(2) – and wisely so. As the Supreme Court made clear in Dukes, “individualized monetary

claims,” including claims for backpay, “belong in Rule 23(b)(3).” 131 S. Ct. at 2558. That

decision sounded the death knell for claimants seeking to certify backpay claims under Rule

23(b)(2).

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Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 53 of 61
requirement of] Rule 23(a).” Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (citing Amchem, 521 U.S. at 623-24).
The Supreme Court recently emphasized the stringency of the predominance requirement in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). That case involved a class of current and former Comcast cable subscribers who sought damages for purported violations of the federal antitrust laws. The plaintiffs initially alleged damages under four theories of antitrust impact, and proposed a damages model that would have included damages under all four theories. The district court accepted only one of the alleged impact theories as capable of classwide proof, and rejected the remaining three. Id. at 1431. Notwithstanding the fact that the proposed damages model provided no method of isolating damages resulting from the one accepted theory of antitrust impact, the district court certified the proposed class under Rule 23(b)(3) for all purposes, including damages calculations. The Supreme Court eventually reversed that decision, holding that the district court had improperly certified the class “[i]n light of the [damages] model’s inability to bridge the differences between supra-competitive prices in general and supra-competitive prices attributable to” the one theory of antitrust impact on which the plaintiffs would be permitted to proceed. Id. at 1435. Since the damages model itself did not isolate those class members who were entitled to damages under the accepted theory of liability, the Court concluded that individual questions of entitlement to damages would inevitably predominate over common questions at the remedial stage
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of the litigation. As the Court stated, in such circumstances, Rule 23(b)(3) could not “authorize treating subscribers . . . as members of a single class.” Id.
The Census Bureau invokes Comcast to argue against Rule 23(b)(3) certification in this case. The gravamen of the Census Bureau’s argument is that questions of individual entitlement to damages will necessarily overwhelm the litigation in the remedial phase because Title VII affords defendants a statutory right to rebut any presumptive entitlement to backpay with fact-specific, individualized defenses. In particular, the Census Bureau argues that it would be entitled to defend against each individual class member’s claim by proving that the applicant would not have been hired even if they had survived the criminal background check. In its view, adjudicating these individual defenses would require the Court to engage in an exhaustive analysis of all the selection records pertaining to the positions sought by each applicant. As the Census Bureau explains, this analysis would require the Court to determine whether each individual applicant met the relevant citizenship requirements and scored high enough on the qualifying exam to have appeared on a selection record in the relevant geographic region, taking other applicants’ veteran preferences into account. The Court then would have to apply the “rule of three” to determine whether the applicant could have been selected under any hypothetical circumstance. The Court also would have to consider the applicant’s availability to work the hours required by the position, the applicant’s willingness to work in the location specified, the applicant’s ability to speak any foreign language required for the position, and, for a male applicant, his compliance with the
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federal selective service requirements. In addition, the Court would have to look to the date of each individual class member’s application to determine the appropriate period of backpay, and then calculate the average number of hours worked in each geographic region to determine the appropriate backpay award. The Court also would need to consider whether each of the class members had mitigated their damages to a reasonable extent. Finally, the Court would have to determine whether any of the class members had committed job-related offenses in the past for which they properly could have been excluded. Having conducted part of this analysis for the eight named plaintiffs in this action, I can attest that the process would, indeed, require much time and effort. Given the highly individualized nature of this analysis, it is clear that individual questions would predominate over any common questions that might still linger at the damages phase of the litigation.
The Plaintiffs propose a shortcut that they contend could obviate the need to undertake the sort of detailed damages analysis proposed by the Census Bureau. Rather than conducting an individualized review of the damages sustained by each class member, the Plaintiffs would have the Court estimate the “hiring shortfall,” or the number of applicants who would have been hired absent the alleged discriminatory practices, estimate the aggregate wages that the shortfall hires would have earned had they been hired, and then distribute those aggregate wages on a pro rata basis. Citing pre-Comcast precedent from the Second Circuit, the Plaintiffs argue that this type of pro rata distribution of backpay is appropriate in situations when “the number of qualified class
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Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 56 of 61
members exceeds the number of openings lost to the class through discrimination[,] and identification of the individuals entitled to relief would drag the court into a quagmire of hypothetical judgments’ and result in mere guesswork.” Robinson, 267 F.3d at 161 n.6 (quoting Catlett v. Mo. Highway & Transp. Comm’n, 828 F.2d 1260, 1267 (8th Cir. 1987)) (internal quotation marks omitted). The Plaintiffs contend that by applying this method, the Court could avoid the need to analyze each class member’s entitlement to damages separately. Moreover, the Plaintiffs suggest that this model would eliminate all of the individualized questions that might otherwise preclude certification under Rule 23(b)(3).
While simplicity is, of course, a virtue, the Plaintiffs’ proposed damages model does not survive scrutiny under Comcast. Here, as in Comcast, the Plaintiffs’ proposed damages model is vastly overinclusive, and doubtlessly includes individuals who are not entitled to backpay under the proposed theory of liability because they would not have been hired even absent the alleged discrimination. Moreover, as in Comcast, the Plaintiffs’ pro rata model makes no attempt whatsoever to separate those class members who are entitled to damages from those who are not. Individual questions regarding each class member’s entitlement to damages thus necessarily will predominate at the remedial stage. For these reasons, the Plaintiffs’ proposed damages subclasses cannot be certified under Rule 23(b)(3).
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C. Bifurcation under Rule 23(c)(4) As an alternative to maintaining a single class action and certifying liability
and damages classes separately under Rules 23(b)(2) and 23(b)(3), the Plaintiffs suggest that the Court exercise its discretion under Rule 23(c)(4) to certify a class only as to the issue of liability. Rule 23(c)(4) gives litigants the option, “when appropriate,” to bring or maintain a class action only with respect to particular issues. Fed. R. Civ. P. 23(c)(4). Prior to Comcast, the Second Circuit endorsed the use of that rule to bifurcate proceedings by certifying the liability and injunctive relief aspects of a proposed class action while leaving damages determinations to individual hearings. See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir. 2001) (discussing decertification after liability phase to allow plaintiffs to litigate damages individually), overruled on other grounds by In re Initial Pub. Offerings Sec. Litig., 471 F.3d at 40; Robinson, 267 F.3d at 167-69 (holding that district court erred by refusing to bifurcate proceedings and certify the liability stage of Title VII claim for (b)(2) class treatment). Following Comcast, courts have taken varying positions as to whether – and if so, in what circumstance – this approach remains viable. See Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 584-89 (S.D.N.Y. 2013) (closely examining both pre- and post-Comcast case law). Some courts have taken the view that plaintiffs seeking class certification must offer “a damages model susceptible of measurement across the entire class,” and that this issue cannot be separated from questions concerning liability. See, e.g., Roach v. T.L. Cannon Corp., No. 3:10 Civ. 0591 (TJM), 2013 WL 1316452, at *3 (N.D.N.Y. Mar. 29, 2013)
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(post-Comcast case refusing to certify a class to adjudicate common liability questions because damages could not be measured on a classwide basis). Others courts have held, however, that “where determinations on liability and damages have been bifurcated, the decision in Comcast – to reject certification of a liability and damages class because plaintiffs failed to establish that damages could be measured on a classwide basis – has limited application.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 860 (6th Cir. 2013) (internal citations omitted); see Miri v. Dillon, 292 F.R.D. 454, 464 (E.D. Mich. 2013) (same); In re Motor Fuel Temperature Sales Practices Litig., 292 F.R.D. 652, 675 (D. Kan. 2013) (same).
The Supreme Court’s primary concern in Comcast was the plaintiffs’ inability to provide a damages model that would allow the district court to award damages on a classwide basis. The plaintiffs in that case, however, did not request bifurcation, and nothing in the Court’s ruling appears to have taken that option off the table in future lawsuits. Accordingly, it appears that Rule 23(c)(4) continues to provide a viable solution if damages cannot be determined on a classwide basis, so long the proposed class satisfies the requirements of Rule 23(a) and (b) with respect to liability. Accord Johnson v. Nextel Commc’ns, Inc., 293 F.R.D. 660, 669 (S.D.N.Y. 2013); Indergit v. Rite Aid Corp., 293 F.R.D. 632, 659 (S.D.N.Y. 2013); Jacob, 293 F.R.D. at 588-89. Of course, “[c]ourts should use Rule 23(c)(4) . . . only where resolution of the particular common issues would materially advance the disposition of the litigation as a whole.” In re Motor, 292 F.R.D. at 665 (internal quotation marks omitted). Courts thus should not use the
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bifurcation approach where, “despite the presence of a common [liability] issue, certification would not make the case more manageable.” Benner v. Becton Dickinson & Co., 214 F.R.D. 157, 169 (S.D.N.Y. 2003) (internal quotation marks omitted).
In this case, certifying the Plaintiffs’ proposed liability and injunctive relief class will materially advance the litigation and make the proceedings more manageable. By litigating these issues on a classwide basis, both the parties and the Court can avoid the extreme time and expense necessary to try each class member’s claims individually. If the 30-day Letter and the Adjudication Criteria are found to have had a disparate impact on minority applicants, they necessarily will have caused a uniform injury to all members of the liability class. The only remaining questions at that point will be whether the Census Bureau can maintain personal defenses against individual plaintiffs’ claims for backpay, and, if not, the amount of backpay owed. If and when the litigation reaches that stage, the Court will have a number of management tools at its disposal to help resolve these issues. For example, the Court could appoint a special master to preside over individual damages proceedings, or could decertify the class after the liability phase and provide notice to plaintiffs as to how to proceed to prove damages. In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 231 (2d Cir. 2006). There is no need to decide at this time which avenue to pursue. What is important is that the Court has the tools to handle any management difficulties that may arise at the remedial phase of this litigation.
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V. Conclusion
For the re~Qom: ;;;et forth :lhove, the Census Bureau's motion to dismiss for

lack of subject matter jurisdiction, (ECF No. 225), and the Plaintiffs' motion for class

certification, (ECF No. 166), are both GRANTED in part and DENIED in part. In addition, because Dr. Lundquist's expert report was not necessary to resolve the motion for class certification, the Census Bureau's motion to exclude her report for that purpose

is denied as moot. (ECF No. 207). To summarize, my rulings on the Census Bureau's motion to dismiss and

the Plaintiffs' motion for class certification are as follows:
1. Plaintiffs Gonzalez, Riesco, and Kargbo lack standing and are dismissed from this case.
2. The Plaintiffs' class shall be limited to African-American applicants who sought temporary employment during the 20 I 0 Decennial Census and claim to have been harmed by the Census Bureau's 30­ day Letter, its Adjudication Criteria, or both. The class shall not include Latino applicants. If the Plaintiffs are able to identify a suitable Latino class representative, they may move to amend the Second Amended Complaint and the class certification order.
3. The Plaintiffs' class shall be certified under Rule 23 (b)(2) for purposes of determining liability and affording injunctive relief, but shall not be certified for purposes of resolving damages.
4. Plaintiffs Houser, Daniels, Rickett-Samuels, Scott, and Desphy shall be designated as class representatives. The Plaintiffs' current counsel shall be appointed as class counsel.

/

Dated:

New York, New York

;/

July 1,2014

Uni ed States Magistrate Judge 60 


Case 1:10-cv-03105-FM Document 265 Filed 07/01/14 Page 61 of 61 Copies to: All counsel via ECF
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 Case 1:10-cv-03105-FM Document 342 Filed 02/08/16 Page 1 of 1

February 8, 2016
By CM/ECF and Facsimile The Honorable Frank Maas United States Magistrate Judge Daniel Patrick Moynihan United States Courthouse 500 Pearl Street, Room 740 New York, New York 10007 Fax: (212) 805-6724
Re: Houser et al. v. Pritzker, No. 10 Civ. 3105 (FM)
Dear Judge Maas:
We represent Plaintiffs in the above-referenced matter. We write jointly with Defendant to provide the Court with a status update regarding the parties’ mediation efforts.

The parties have concluded their negotiations and reached an agreement that is subject to Department of Justice (“DOJ”) review and approval. The Government is taking the necessary steps to seek DOJ approval of the proposed agreement as promptly as it can. That process requires a series of reviews and approval, ultimately, by the Associate Attorney General.
The parties respectfully suggest that a further status update will be unnecessary if DOJ approves the agreement and a motion for preliminary approval of the settlement is filed with the Court by the beginning of March 2016. If the motion is not filed by then, with the Court’s approval, the parties propose to provide a further update to the Court on March 16, 2016. We thank the Court for its consideration of this matter.

cc: Counsel of record (via ECF)

Respectfully submitted,
/s/ Adam Klein
Adam T. Klein OUTTEN & GOLDEN LLP Ossai Miazad Lewis M. Steel 3 Park Avenue, 29th Floor New York, NY 10016

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

ANTHONY GONZALEZ, IGNACIO RIESCO, PRECIOUS DANIELS, ALEXIS MATEO, FELICIA RICKETT-SAMUELS, CHYNELL SCOTT, VIVIAN KARGBO, SCOTTY DESPHY, and EDWARD ZAHNLE, on behalf of themselves and all others similarly situated, and CEPHUS HOUSER as the Trustee for the Trust Agreement of EVELYN HOUSER, individually,

10-cv-3105 (FM)

Plaintiffs,

v.

PENNY PRITZKER, Secretary, United States Department of Commerce,

Defendant.

SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release (the “Agreement”) is entered into by and between Anthony Gonzalez, Ignacio Riesco, Precious Daniels, Alexis Mateo, Felicia RickettSamuels, Chynell Scott, Vivian Kargbo, Scotty Desphy, and Edward Zahnle (collectively hereinafter “Named Plaintiffs”), on behalf of themselves and of a class of individuals they represent (“Class Members”), and seek to represent, in the above-captioned matter (the “Litigation”), and Penny Pritzker, Secretary, United States Department of Commerce ( “Census” or “Defendant”) (together with the Named Plaintiffs and Class Members, the “Parties”). Cephus O. Houser, as personal representative and trustee of the revocable living trust agreement of plaintiff Evelyn Houser and representative of the interests of plaintiff Evelyn Houser (hereinafter, “Cephus Houser”) agrees to the terms of the Agreement relating to Ms. Houser’s personal interests.

I. RECITALS AND BACKGROUND
WHEREAS, a class action was filed in the United States District Court for the Southern District of New York on April 13, 2010;
WHEREAS, the Parties have engaged in substantial discovery, including dozens of depositions and the production of hundreds of thousands of pages of documents, as well as expert discovery;

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WHEREAS, on September 16, 2014, Plaintiffs filed their Third Amended Complaint, which asserts disparate impact discrimination claims on behalf of African-American and Latino applicants contending that they were denied the opportunity to compete for temporary jobs for the 2010 decennial census based on an application of Census’s 2010 decennial census criminal background check screening process;
WHEREAS, on October 2, 2014, Magistrate Judge Frank Maas accepted the Third Amended Complaint for filing and issued an order certifying a class, under Federal Rule of Civil Procedure (“Rule”) 23(b)(2), of: (1) all African-American applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by Census’s 30day Letter, its Adjudication Criteria, or both; and (2) all Latino applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by Census’s 30day Letter, its Adjudication criteria, or both (together, “Class Members”).
WHEREAS, in January 2015, the Parties engaged the services of Hunter Hughes, Esq., a mediator with experience in the mediation of complex class actions, including employment discrimination litigation (the “Mediator”);
WHEREAS, after extensive consultation with the Parties, the Mediator conducted four in-person mediation sessions as well as multiple follow-up meetings separately with each Party;
WHEREAS, the Parties have reached a proposed comprehensive settlement of this action that has resulted in this Agreement;
WHEREAS, the Parties agree that a settlement of this Litigation is in the public interest;
WHEREAS, the Parties have agreed to the appointment of two well-qualified Industrial/ Organizational Psychologists to develop validated procedures with regard to the hiring of temporary field employees for the 2020 decennial census, and the two Industrial/Organizational Psychologists have agreed to undertake this project;
WHEREAS, Defendant denies any and all liability or damages to anyone with respect to the alleged facts or causes of action asserted in the Litigation;
WHEREAS, without admitting or conceding any liability or damages whatsoever, Defendant has agreed to settle the Litigation on the terms and conditions set forth in this Agreement, to avoid the burden, expense, and uncertainty of continuing the Litigation;
WHEREAS, Plaintiffs’ Counsel has analyzed, evaluated, and extensively litigated the merits of the claims made against Defendant in the Litigation, and the impact of this Agreement on Plaintiffs and members of the class action, and based upon Plaintiffs’ Counsel’s analysis and evaluation of a number of factors, and recognizing the substantial risks of continued litigation, including the possibility that the Litigation, if not settled now, might not result in any recovery whatsoever, or might result in a recovery that is less favorable and that would not occur for
2

several years, Plaintiffs’ Counsel is satisfied that the terms and conditions of this Agreement are fair, reasonable, and adequate and that this Agreement is in the best interest of the Plaintiffs and the members of the class;
WHEREAS, the attorneys’ fees that Plaintiffs’ Counsel seek are based on their hourly records, summaries of which were provided to Defendant;
NOW THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement, as well as the good and valuable consideration provided for herein, the Parties hereto agree to a full and complete settlement of the Litigation on the following terms and conditions:
1. DEFINITIONS
The defined terms set forth in this Agreement have the meanings ascribed to them below.
1.1 30-Day Letter. “30-day letter” means the letter sent by the Census Bureau to applicants for temporary jobs with the 2010 Decennial Census who could not be cleared for employment based on information provided by the FBI during the namecheck process, requesting that the applicant provide fingerprints or documentation of the disposition of arrests noted on the information provided by the FBI.
1.2 Adjudication Criteria. “Adjudication criteria” means the criteria used to evaluate applicants in determining their suitability for temporary jobs with the 2010 Decennial Census.
1.3 Agreement. “Agreement” or “Settlement” means this Settlement Agreement and Release.
1.4 Acceptance Period. “Acceptance Period” means the ninety (90) day period, beginning from the date of the mailing of the Settlement Notice and Claim Form, during which a Class Member can submit a Claim Form to participate as a Group A or Group B Filer.
1.5 Claim Bar Date. “Claim Bar Date” means the last day of the ninety (90) day Acceptance Period in which any Class Member may timely complete and submit a Claim Form, or one hundred and twenty (120) days from the initial mailing of the Settlement Notices, whichever is earlier.
1.6 Claim Form. “Claim Form” means the Claim Form, as approved by the Court in substantially the form of the document attached to this agreement as Exhibit A, whereby a Class Member may elect to participate as a Group A or Group B Filer.
1.7 Class Counsel or Plaintiffs’ Counsel. “Class Counsel” or “Plaintiffs’ Counsel” means Outten & Golden LLP, Center for Constitutional Rights, Community Legal Services of Philadelphia, Community Service Society of New York, the Indian Law Resource Center of Helena, Montana, LatinoJustice PRLDEF of New York, and the Lawyers’ Committee for Civil Rights, of Washington, D.C.
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1.8 Class Members. “Class Members” are Named Plaintiffs and (1) all African-American applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by Census’s 30-day Letter, its Adjudication Criteria, or both; and (2) all Latino applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by Census’s 30-day Letter, its Adjudication Criteria, or both.
1.9 Class Member Release. “Class Member Release” means the release by which each Class Member shall release Census from all claims, demands, causes of action, and liabilities, known and unknown, that he or she had, have, or may have under any legal or equitable theory, whether contractual, common-law, or statutory, and whether under federal, state, or local law, against Defendant arising from or relating to or concerning the claims and facts alleged in this Action (and the underlying complaints of discrimination filed with the U.S. Department of Commerce, Office of Civil Rights, and the Census Bureau’s Equal Employment Opportunity Office), whether under the Third Amended Complaint and/or any prior version of the Complaint filed in this Action including, without limitation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.
1.10 Court or District Court. “Court” or “District Court” means the United States District Court for the Southern District of New York, the Honorable Chief Magistrate Judge Frank Maas presiding.
1.11 Days. “Days” means business days if the specified number is less than ten (10), and calendar days if the specified number is ten (10) or greater.
1.12 Defendant or Census. “Defendant” or “Census” shall mean Penny Pritzker, Secretary, United States Department of Commerce, in her official capacity, or her successor, and the U.S. Census Bureau.
1.13 Defendant’s Counsel or Census’s Counsel. “Defendant’s Counsel” or “Census’s Counsel” means the United States Attorney’s Office, Southern District of New York.
1.14 Effective Date. “Effective Date” of the Settlement means the latest of the following dates: (a) the date sixty (60) days after the entry of an order by the District Court granting final approval to the Settlement, if there are no appeals; or (b) if there is an appeal of the Court’s decision granting final approval, the day after all appeals are finally resolved in favor of final approval.
1.15 Fairness Hearing. “Fairness Hearing” means the hearing before the Court relating to the Motion for Final Approval.
1.16 Final Approval Order. “Final Approval Order” means the Order entered by the Court after the Fairness Hearing, approving the terms and conditions of this Agreement.
1.17 Funding Date. “Funding Date” means the date upon which Defendant transfers Fifteen Million and No/100 Dollars ($15,000,000) to Outten & Golden LLP, as escrow agent, which date shall occur as soon as practicable after the Effective Date of this Agreement.
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Defendant agrees to initiate the process to commence payment of the Settlement Fund within 5 days of the Effective Date of this Agreement.
1.18 Group A Filers. “Group A Filers” means Class Members who file a Claim Form electing assistance with reviewing and, where possible, correcting the criminal history information that may appear on a background check.
1.19 Group B Filers. “Group B Filers” means Class Members who file a Claim Form who wish to be employed in a temporary job with Census, including but not limited to enumerator, clerical, and enumerator supervisor positions, during the 2020 decennial census.
1.20 Hiring Selection Report. “Hiring Selection Report” means the report drafted by the IOs pursuant to this Agreement.
1.21 IOs. “IOs” means the Industrial/Organizational Psychologists Dr. Kathleen Lundquist and Dr. Eric Dunleavy, or their replacements (to be mutually determined by the Parties), tasked with working together as independent consultants to Census relative to the selection and hiring of temporary employees for the 2020 decennial census.
1.22 Mediator. “Mediator” means Hunter Hughes, Esq., or his replacement (to be mutually determined by the Parties).
1.23 Litigation. “Litigation” means the above-captioned case.
1.24 Named Plaintiffs. “Named Plaintiffs” means Anthony Gonzalez; Ignacio Riesco; Precious Daniels; Alexis Mateo; Felicia Rickett-Samuels; Chynell Scott; Vivian Kargbo; Scotty Desphy; and Edward Zahnle, their representatives, heirs, administrators, executors, beneficiaries, conservators, attorneys, and assigns, and any other person who becomes a named plaintiff or is substituted for a named plaintiff.
1.25 Notice or Notices. “Notice” or “Notices” means the Court–approved Notice of Proposed Settlement of Class Action Lawsuit.
1.26 Objector. “Objector” means an individual who properly files an objection to this Agreement, and does not include any individual who opts out of this Agreement.
1.27 Opt out Statement. “Opt out Statement” means a written signed statement that an individual Class Member has decided to opt out and not be included in this Agreement.
1.28 Participating Class Members. “Participating Class Members” means those Class Members who do not submit a valid Opt out Statement.
1.29 Parties. “Parties” means the Named Plaintiffs, Participating Class Members, and Census.
1.30 Preliminary Approval Order. “Preliminary Approval Order” means the Order entered by the Court preliminarily approving the terms and conditions of this Agreement, and
5

directing the manner and timing of providing Notices to the Class Members.
1.31 Settlement Account. “Settlement Account” means the account established at a federally insured financial institution acceptable to Defendant by Outten & Golden LLP, as attorneys for the class, in a segregated interesting-bearing escrow account paid by Defendant. The Settlement Account will be controlled by Outten & Golden LLP subject to the terms of this Agreement and the Court’s Orders for Preliminary Approval and Final Approval. Earned Interest, if any, will become part of the Settlement Fund.
1.32 Records Assistance Project. The “Records Assistance Project” means the criminal records assistance project established by Class Counsel to assist Group A Filers.
1.33 Release of Fees and Costs. “Release of Fees and Costs” means the release, of the Named Plaintiffs, on behalf of the Class and each individual Class Member, to irrevocably and unconditionally release, acquit, and forever discharge any claim that they may have against Census for attorneys’ fees or costs associated with Class Counsel’s representation of Plaintiffs and the Class.
1.34 Scope of Work Document. The “Scope of Work Document” means the Census Hiring Process Development Scope of Work for the IOs document, which has been agreed to by the IOs and sets forth their responsibilities. A copy of the Scope of Work document is attached as Exhibit B and is incorporated herein.
1.35 Service Award. “Service Award” means Court-approved compensation awarded to Named Plaintiffs and the Estate of Evelyn Houser for their respective roles as litigants in this case.
1.36 Settlement Administrator. “Settlement Administrator” means the company or individual retained by Class Counsel to distribute the Notices and Claim Forms, and to otherwise administer the settlement. If the Court’s Final Approval Order approves the terms of this Agreement, the Settlement Administrator’s fees and costs of administering the settlement shall be borne by the Settlement Fund.
1.37 Settlement Fund. “Settlement Fund” means the Fifteen Million and No/100 Dollars ($15,000,000) that Census will pay to settle this lawsuit.
1.38 Third Amended Complaint. “Third Amended Complaint” means the Third Amended Class Action Complaint filed in this Litigation on September 16, 2014.
2. INITIAL PROCEDURAL ISSUES
2.1 Binding Agreement. This Agreement is a binding agreement and contains all material agreed-upon terms for the Parties to seek a full and final settlement of the Litigation.
2.2 Retention and Responsibilities of the Settlement Administrator. The Settlement Administrator will be responsible for distributing the Notices and Claim Forms to Class Members in accordance with the Court’s Preliminary Approval Order, maintaining a tollfree phone number and website to answer class member questions, collecting and
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verifying responses, providing copies of all Claim Forms to Class Counsel and distributing Service Awards. The Settlement Administrator shall be paid by Class Counsel.
(A) The Parties will have equal access to the Settlement Administrator. The Settlement Administrator will provide regular reports to Class Counsel, but no less frequently than every two (2) weeks, regarding the status of distributing Notices and Claim Forms to Class Members, the claims administration process, and the identity and number of Class Members who file Group A and Group B Claim Forms, and which Class Members, if any, object to and/or opt-out of the Settlement. The Settlement Administrator will make the same information available to Census upon request.
(B) Census agrees to reasonably cooperate with the Settlement Administrator to facilitate Census’s obligations in this Agreement, including to provide information to assist the Settlement Administrator in locating Class Members, as specified in Section 2.4 below.
2.3 Preliminary Approval Motion.
(A) Following the Parties’ execution of this Agreement, Class Counsel will file with the Court a Motion for Preliminary Settlement Approval, memorandum of law in support thereof, proposed Notice to Class Members, Claim Form, and Proposed Order (together the “Preliminary Approval Motion”), that is consistent with the Agreement. The Preliminary Approval Motion will seek a settlement class pursuant to Federal Rule of Civil Procedure 23(e) and 23(b)(3), with an opt out right.
(B) The Preliminary Approval Motion also will seek the setting of date(s) for individuals to opt out of this Agreement or provide objections to this Agreement, which date will be ninety (90) days from the date Notice is transmitted to the Class Members, and for a Fairness Hearing for Final Approval of the Settlement before the Court at the earliest practicable date.
(C) In the Preliminary Approval Motion, Class Counsel will seek to certify a Fed. R. Civ. Proc. 23(b)(3) settlement class, with an opt out right, and inform the Court of the intended process to obtain a Final Approval Order that will, among other things: (1) approve the Settlement as fair, adequate and reasonable; (2) incorporate the terms of the Release, as described herein; (3) dismiss the Litigation with prejudice; (4) award Class Counsel fees and costs; and (5) award Service Awards to Named Plaintiffs.
(D) If the Court denies the Preliminary Approval Motion, the Parties will work together in good faith to revise the Agreement to address the Court’s concerns, seek reconsideration, and/or appeal the Court’s decision. Any disputes between the Parties will be submitted to the Mediator. If these efforts are ultimately unsuccessful or a settlement class is not certified, the Litigation will resume as if
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no settlement had been attempted, and this Agreement will be null and void, with no force and effect.
(E) The Parties will work together, diligently and in good faith, to expeditiously obtain a Preliminary Approval Order, Final Approval Order, and all other aspects of the settlement approval process.
2.4 Notice to Class Members
(A) Within fourteen (14) days of the filing of the Preliminary Approval Order, Census will provide the Settlement Administrator, in electronic form, a list of all 2010 decennial census applicants who were excluded by Census’s adjudication criteria, or who received Census’s 30-day letter. Census will provide the following information for each such applicant, to the extent said information was originally provided by the applicant to Census and resides in Census’ records: name, social security number, self-reported email addresses, last known address, and last known phone numbers. All information provided regarding potential class members will also be provided to Class Counsel. Before such information is released, the Parties will draft a protective order to be signed by the Settlement Administrator and Class Counsel and endorsed by the Court. The protective order will cover all decennial census applicants’ personal identifying information protected under the Privacy Act.
(B) Within fourteen (14) days of Census’s provision of the information set forth in Section 2.4(A) to the Settlement Administrator, the Settlement Administrator will transmit via electronic mail to any potential class member for whom an e-mail address was provided, the Court approved Notice and Claim Form. For potential class members for whom Census does not produce an e-mail address and those for whom the e-mail notice is returned undeliverable, the Settlement Administrator will provide, via First Class United States Mail, postage prepaid, a postcard notifying them of the Settlement and directing them to an interactive settlement website and a toll-free number for additional information. The website and the toll-free number will be operated by the Settlement Administrator. Potential class members will be able to view the Notice and Claim Form through the website and can either submit online or print and submit via e-mail, fax or U.S. Mail. Potential class members will also be able to request a hard copy to be sent to them via First Class Mail.
(C) The Claim Form shall require the potential class member to provide his or her name, signature, date of signing, a certification that he or she applied for a position with Census, and a certification that he or she self-identifies as AfricanAmerican and/or Latino (and will include the option to provide an email address). The Claim Form will also contain a short description of what it means to be a Group A Filer and Group B Filer, an opportunity to select to be a Group A Filer or Group B Filer, and information regarding the Settlement opt out procedure discussed in Section 2.5. The Claim Form will be returnable by email, website, fax, or U.S. Mail.
8

(D) All Group A and Group B filers who self-identify as African-American or Latino will automatically be designated by the Settlement Administrator as official “Class Members.” The Settlement Administrator shall exclude from Class Member Relief any individual that fails to affirmatively self-identify as AfricanAmerican or Latino. Additionally, the Settlement Administrator shall have sole authority to reject any Claim Form on the basis that it contains any manner of incomplete information.
(E) In order to be timely, Claim Forms sent by email not returned as undeliverable or mailed by the Settlement Administrator and not returned as undeliverable must be returned to the Settlement Administrator by the date which is ninety (90) days after the date they are transmitted by the Settlement Administrator, but no later than one hundred and twenty (120) days after the date of the initial transmittal of the Notices. Claim Forms will not be considered if received by fax or email or the envelope returning it to the Settlement Administrator is dated or postmarked later than that date (i.e., more than ninety (90) days after the date transmitted by the Settlement Administrator, or more than one hundred and twenty (120) days after the date of the initial transmittal of the Notices). However, additional time may be provided to a potential class member who misses the Claim Bar Date if good cause, as determined by the Settlement Administrator, is demonstrated by the potential class member, provided that in no event may the additional time exceed ninety (90) additional days after the Claim Bar Date.
(F) The Settlement Administrator will take all reasonable steps to obtain the correct address of any Class Members or potential class members for whom a Notice is returned by the post office as undeliverable and shall attempt to re-mail the Notice to the updated address. The Settlement Administrator will notify Class Counsel of any Notice sent to a Class Member or potential class member that is returned as undeliverable after the first mailing, as well as any such Notice returned as undeliverable after any subsequent mailing(s) as set forth in this Agreement. Class Members or potential class members for whom any re-mailing is sent shall have ninety (90) days from the last re-mailing to submit their Claim Form, or one hundred and twenty (120) days from the initial mailing, whichever is earlier.
(G) All Class Members and potential class members will be deemed to have filed their Claim Forms with the Court on the date the Claim Form is returned to the Settlement Administrator.
2.5 Class Member Opt Outs.
(A) Any Class Member who chooses to opt out of the Settlement as set forth in this Agreement must mail via First Class United States Mail, postage prepaid, a written, signed statement to the Settlement Administrator that states he or she is opting out of the Settlement, and include his or her name, address, email address(es), and telephone number(s) and state, “I opt out of the Census 2010 Decennial Applicant Settlement” (“Opt out Statement”).
9

(B) The end of the time period to opt out of the Settlement (“Opt out Period”) shall be ninety (90) days after the day on which the Settlement Administrator transmits a Notice to a Class Member. Class Members whose first mailing was returned to the Settlement Administrator as undeliverable will be allowed until the earlier of (a) ninety (90) days after the re-mailing or (b) one hundred and twenty (120) days after the Settlement Administrator’s initial mailing to all Class Members to opt out. The Settlement Administrator will not attempt more than two (2) mailings of the Notice to any Class Member, and no mailing shall occur more than ninety (90) days after the first mailing to the Class Member.
(C) The Settlement Administrator will, within ten (10) days after the last day on which it delivers the last Notice to any Class Member, notify Class Counsel and Defendant’s Counsel by email of the precise date of the end of the Opt out Period.
(D) The Settlement Administrator will stamp the postmark date on the original of each Opt out Statement that it receives and shall send copies of each Opt out Statement to Class Counsel and Defendant’s Counsel not later than three (3) days after receipt thereof. The Settlement Administrator will also, within three (3) days of the end of the Opt out Period, file with the Clerk of Court, stamped copies of any Opt out Statements. The Settlement Administrator will, within 24 hours of the end of the Opt out Period, send a final list of all Opt out Statements to Class Counsel and Defendant’s Counsel by both email and overnight delivery. The Settlement Administrator will retain the stamped originals of all Opt out Statements and originals of all envelopes accompanying Opt out Statements in its files until such time as the Settlement Administrator is relieved of its duties and responsibilities under this Agreement.
(E) Any Class Member who does not properly submit an Opt out Statement pursuant to this Agreement will be deemed to have accepted the Settlement and the terms of this Agreement, and will be eligible to participate as a Group A Filer or Group B Filer by filing a Claim Form, as set forth in this Agreement. Any Class Member who fails to submit a claim for relief in accordance with Section 2.4 of this Agreement or who opts out under this Section will not be entitled to Class Member Relief.
2.6 Objections to Settlement.
(A) Class Members who wish to present objections to the proposed Settlement at the Fairness Hearing must first do so in writing. To be considered, such statement must be mailed to the Settlement Administrator via First Class United States Mail, postage prepaid, and be received by the Settlement Administrator by a date certain ninety (90) days after the Settlement Administrator mails a Notice to such Class Member. The statement must include all reasons for the objection and any reasons not included in the statement will not be considered. The statement must also include the name, address, email(s), and telephone number(s) for the Class Member making the objection. The Settlement Administrator will stamp the date received on the original and send copies of each objection to Class Counsel and
10

Defendant’s Counsel by email and first class mail no later than three (3) days after receipt thereof. The Settlement Administrator will also file the date-stamped originals of any and all objections with the Court within three (3) days after the end of the Opt out Period.
(B) An individual who files objections to the Settlement (“Objector”) also has the right to appear at the Fairness Hearing either in person or through counsel hired by the Objector. An Objector who wishes to appear at the Fairness Hearing must state his or her intention to do so in writing in his or her written objections at the time he or she submits his or her written objections. An Objector may withdraw his or her objections at any time. No Class Member may present an objection at the Fairness Hearing based on a reason not stated in his or her written objections. A Class Member who has submitted an Opt out Statement may not submit objections to the Settlement.
(C) The parties may file with the Court written responses to any filed objections no later than three (3) days before the Fairness Hearing.
2.7 Fairness Hearing and Motion for Final Approval and Dismissal.
(A) At the time established by the Court via the Preliminary Approval Motion (See Section 2.3(A) supra), Plaintiffs’ Counsel will file with the Court a Motion for Final Approval of Settlement, and a Proposed Order Approving the Settlement and Dismissing the Litigation with prejudice (“Final Approval Motion”) that is consistent with this Agreement.
(B) At the Fairness Hearing and in the Motion for Final Approval of Settlement, Plaintiffs’ counsel will request that the Court, among other things: (1) certify the Class for purposes of settlement; (2) approve the Settlement and Agreement as fair, reasonable, adequate, and binding on all Class Members who have not timely opted out of the Settlement; (3) order the attorneys’ fees and costs to be paid to Class Counsel from the Settlement Account; (4) order the dismissal with prejudice of all claims asserted or that could have been asserted in the Litigation and the claims of all Class Members who did not opt-out, subject only to an application for relief under Fed. R. Civ. P. 60(b)(1), or 60(d); (5) order entry of Final Judgment in accordance with this Agreement; and (6) retain jurisdiction as necessary for the purpose of facilitating the Settlement and other relief pursuant to this Agreement.
(C) If the Court fails to enter a Final Approval Order in accordance with this Agreement, or if the Final Approval Order is set aside on appeal, Class Counsel and Defendant’s Counsel will work together in good faith to revise the Agreement to address the Court’s concerns, seek reconsideration, and/or attempt other remedial actions to correct any deficiencies in the Agreement. Any disputes between the parties will be submitted to the Mediator. If these attempts are unsuccessful, or a settlement class is not certified, the Litigation will proceed as if
11

no settlement had been attempted, and this Settlement will be null and void, with no force and effect.
(D) If the Court fails to enter a Final Approval Order, and the remedial actions specified in Part C of Section 2.7 in this Agreement are not successful, the Settlement Administrator will provide notice to Class Members that the Agreement did not receive Final Approval and that, as a result, the Class Members will receive no benefit under the Agreement. The content of such notice shall be agreed to by the Named Plaintiffs’ counsel and Census, and such notice shall be distributed by the Settlement Administrator.
3. SETTLEMENT TERMS
3.1 Settlement Amount.
(A) Census agrees to pay the Settlement Fund, which is a total of Fifteen Million and No/100 Dollars ($15,000,000), which shall fully resolve and satisfy the individualized relief through the Records Assistance Project, any claim for attorneys’ fees and costs approved by the Court, any Court-approved Service Awards to Named Plaintiffs, any fees and costs associated with investing and liquidating the Settlement Fund, and the Settlement Administrator’s fees and costs. Class Counsel will seek court approval up to Ten Million and No/Dollars ($10,000,000), for the payment of attorneys’ fees and costs and the Settlement Administrator’s fees and costs, and costs relating to the maintenance of the Settlement Fund. Class Counsel will seek Court approval for their fees at the rates provided to Census in the schedule attached as an exhibit to the Motion for Final Approval. The Settlement Fund will be paid on the Funding Date, which is defined as meaning as soon as practicable after receipt of Final Approval.
(B) Outten & Golden LLP shall deposit the Settlement Fund in its entirety into an FDIC insured interest-bearing account, and interest from such interest-bearing account will become part of the Settlement Fund and be held by Outten & Golden LLP in escrow.
(C) Any uncashed Service Awards and all other amounts remaining in the Settlement Fund as of 180 days after Final Approval will be redistributed to the Records Assistance Project.
(D) Nothing in this settlement constitutes an agreement by the United States concerning the characterization of any portion of the Settlement Amount for purposes of the Internal Revenue Code, Title 26 of the United States Code.
3.2 Programmatic Terms.
(A) Selection. The Parties have jointly selected the IOs to work together as independent consultants to Census relative to the selection and hiring of temporary employees for the 2020 decennial census. The IOs have experience
12

conducting professional job analyses and validating selection criteria, including experience in the criminal background check context.
(B) Responsibilities. The IOs will work together, in consultation with Census, to develop a recommended validated structure and selection process for the hiring of temporary employees for the various operations of the 2020 decennial census. Their recommendations will be memorialized in the Hiring Selection Report.
(C) Scope of Work. The Parties have agreed upon the Scope of Work Document (see Exhibit B). The Parties have met with the IOs and have discussed various aspects of this project, and each IO has agreed through his or her affiliated corporate entity to undertake the assignment set forth in the Scope of Work Document. The IOs agree to use their best efforts to fulfill their obligations under the Scope of Work Document. Census agrees to give the IOs as much advance notice as possible with regard to scheduling issues and will make its relevant staff, employees, and outside contractors and other relevant entities or individuals available to the IOs on a timely basis. Census agrees to request that the Office of Personnel Management (“OPM”) cooperate with the IOs concerning OPM’s validation of the new test for temporary 2020 decennial census employees (“New Test”). Any recommendations by the IOs relating to improving the reliability and/or validity of the New Test will be communicated to OPM by Census.
(D) Compensation of the IOs. Census will enter into a consulting agreement with the IOs, which provides for their respective compensation and is consistent with the Scope of Work Document and applicable Federal laws, rules, regulations, and guidance, at the latest, within fourteen (14) days of the Parties’ entering into a formal settlement agreement. The IOs will commence their assignments within fifteen (15) days after the Court enters the Final Approval Order approving the Settlement of this lawsuit, but nothing in this provision shall prevent Census from, in consultation with Named Plaintiffs’ counsel, contracting with the IOs and commencing work before the Court enters an order approving the Settlement of this lawsuit.
(E) Dispute Resolution.
(1) Resolution of Differences between the IOs. The IOs are expected to work together to develop validated selection approaches and recommendations to Census for the 2020 decennial census. In the event that a material difference of opinion arises between the IOs relative to matters that are covered by the Scope of Work Document, they will promptly notify Class Counsel, Defendant’s Counsel, and the Mediator in writing of the issue. Upon notification, the Mediator shall convene a joint meeting with the IOs and Class Counsel and Defendant’s Counsel to discuss the issue(s) and to agree on a resolution. In the event that a resolution cannot be reached between the IOs on the disputed issue through the aforementioned process, Class Counsel and Defendant’s Counsel may consider submitting the disputed issue to a third IO jointly selected by the parties. Absent further
13

written agreement of Census, nothing in this provision shall obligate Census or any other agency of the United States to retain or pay for work performed by such a third IO.
(2) Resolution of Disputes Where Census Rejects an IO Recommendation.
(a) Census and the IOs will work together constructively to address concerns or issues. Census will inform the IOs if it intends to reject or materially modify any IO recommendation. If after consultation between Census and the IOs an impasse is reached regarding a recommendation, Class Counsel and Defendant’s Counsel will jointly meet with the IOs and the Mediator to attempt to expeditiously resolve the matter.
(b) If, following such meetings, Census still does not agree with a joint recommendation of the IOs, Census and the IOs shall notify Class Counsel and the Mediator in writing. The Mediator shall then consider the Parties’ respective positions and make a non-binding recommendation on resolution. Census shall promptly provide to the Mediator and Class Counsel a written response to the Mediator’s recommendation.
(F) The Parties understand and agree that nothing in this Agreement precludes Class Counsel or any Class Member from taking legal action against Census for its future hiring policies and practices. However, a failure by Census to adopt any recommendation of the IOs will not constitute a breach of the Agreement.
(G) The IOs and the Mediator have agreed to serve consistent with this Agreement and understand the need for expeditious resolution of all matters covered herein. If, however, one or both of the IOs must withdraw due to illness or other reason, Census and Class Counsel agree to work together to replace said IO or IOs with a person or persons who can be brought up to speed quickly with regard to the issues to be resolved and who will work under the same terms and conditions as the original IOs. If Census and Class Counsel cannot agree on an IO, they can each make written submissions to the Mediator requesting that the Mediator select a preferred IO or IOs. Similarly, if the Mediator is forced to withdraw, Class Counsel and Defendant’s Counsel will notify the court and immediately seek a replacement Mediator acceptable to Census and Class Counsel.
3.3 Class Member Relief.
(A) Records Assistance Project: Group A Filers.
(1) Scope. Class Counsel will establish the Records Assistance Project to assist Group A Filers. The Records Assistance Project will obtain computerized criminal history records information and attempt to resolve issues such as open dispositions and other discrepancies. Class Counsel intend to contract with Cornell University’s School of Industrial and Labor
14

Relations to serve as the clearinghouse for Group A Filers. In addition, Class Counsel intend to work with Cornell University to design training and other Class Member assistance programs. The Records Assistance Project may provide additional Class Member services depending on the number of Group A Filers and Settlement Fund budget constraints, at the sole discretion of Class Counsel. The costs and expenses of the provision of these services to Group A filers shall be paid solely out of the Settlement Fund. The Agreement allocates Five Million and No/000 Dollars ($5,000,000) to fund the Records Assistance Project and for individual relief for Class Members who select in their Claim Forms to be Group A Filers and for Individual Service Awards and the payment of Service Awards. Any unclaimed funds, including but not limited to Service Awards, will be given to the Records Assistance Project.
(2) Coordination. Class Counsel will coordinate with relevant programs within the U.S. Department of Labor and Department of Justice providing re-entry services, to encourage opportunities to maximize the reach and benefit of the Records Assistance Project to Class Members. Coordination shall mean that Census will contact the relevant federal agencies notifying them of this Settlement and will request that whenever possible, their appropriate staff employees assist Class Counsel to support the purposes of this Settlement.
(B) Advance Notice Hiring: Group B Filers.
(1) Scope. Census will provide Group B Filers with advance notice of its intent to hire temporary applicants. Such “early notice” shall be made before, or no later than contemporaneously with, Census’s first general announcement of 2020 decennial hiring, such that Group B Filers who provide timely and complete applications will have their applications considered for census jobs along with the first group of applicants for the 2020 decennial.
(2) Procedure. Census will draft an “early notice” announcement directed at Group B filers and provide it to the Settlement Administrator. The Settlement Administrator will then provide the Census’s early notice announcement to all Group B Filers who have provided a valid email and/or cellular telephone address on their Claim Form. The early notice announcement will be provided via email, text message, or any other appropriate means selected by the Settlement Administrator. When hiring commences, Group B Filers who have completed the standard temporary hiring application will have their criminal history reviewed through the process adopted by Census following consultation with the IOs. Costs and expenses relative to the processing/potential hiring of Group B filers will not be paid out of the Settlement Fund. The Parties, including the Settlement Administrator, shall not be responsible for notifying any Group
15

B applicant that fails to provide a valid email or cellular telephone address.
(3) Coordination. Class Counsel, Defendant’s Counsel, and Census will work together to provide a meaningful Group B early notice announcement that will assist Group B Filers in pursuing temporary job opportunities for the 2020 decennial census, including but not limited to information about the criminal background check process.
3.4 Payment to Mediator for Duties Performed Pursuant to This Agreement.
(A) Reasonable fees and costs incurred by the Mediator in performance of his duties after the Effective Date of this Agreement shall be shared equally by the Parties or their respective counsel.
3.5 Settlement Amounts Payable as Attorneys’ Fees and Costs.
(A) At the Fairness Hearing and in the Motion for Final Approval, Class Counsel will petition the Court for an award of attorneys’ fees and reimbursement of actual litigation costs and expenses, to include all costs of claims administration, including claim administrator fees and costs, in an amount of no more than Ten Million and No/000 Dollars ($10,000,000) from the Settlement Fund.
(B) The outcome of any proceeding related to Class Counsel’s application for attorneys’ fees and costs shall not terminate this Agreement or otherwise affect the Court’s ruling on the Motion for Final Approval. Any fees or costs sought by Class Counsel but not approved by the Court shall revert to the Settlement Fund.
(C) The attorneys’ fees and costs shall be paid from the escrow account, after the Court approves the Final Approval Order, and no later than fourteen (14) days after when Census funds the Settlement Fund.
3.6 Service Awards and Other Payments to Named Plaintiffs.
(A) In return for services rendered to the Class Members, at the Fairness Hearing, Named Plaintiffs will apply to the Court to receive Service Awards, funds for these awards to be drawn specifically from the Five Million and No/000 Dollars ($5,000,000) allocated for individual relief. For purposes of this provision, the Estate of Evelyn Houser shall be deemed a Named Plaintiff. The Named Plaintiffs shall seek no more than ten thousand dollars ($10,000) each.
(B) The outcome of the Court’s ruling on the application for Service Awards will not terminate this Agreement or otherwise affect the Court’s ruling on the Motion for Final Approval. Should all or part of any Service Award sought not be approved by the Court, the sum shall revert to the Settlement Fund.
16

4. RELEASE
4.1 Release of Claims.
(A) Release of Class Member Claims. By operation of the entry of Final Approval, and except as to such rights or claims as may be created by the Settlement Agreement, each Class Member shall release Census from all claims, demands, causes of action, and liabilities, known and unknown, that they had, have, or may have under any legal or equitable theory, whether contractual, common-law, or statutory, and whether under federal, state, or local law, against Defendant arising from or relating to or concerning the hiring and employment eligibility procedures for the 2010 Decennial Census, including but not limited to, claims and facts alleged in this Action (and the underlying EEOC complaints), whether under the Third Amended Complaint and/or any prior version of the Complaint filed in this Action including, without limitation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.
(A) Release of Fees and Costs. By operation of the entry of Final Approval, and except as to such rights or claims as may be created by this Agreement, Named Plaintiffs, on behalf of the Class and each individual Class Member, irrevocably and unconditionally release, acquit, and forever discharge any claim that they may have against Census for attorneys’ fees or costs associated with Class Counsel’s representation of Named Plaintiffs and the Class. Named Plaintiffs further understand and agree that any fee payments approved by the Court will be the full, final, and complete payment of all attorneys’ fees and costs associated with Class Counsel’s representation of the Class. The Estate of Evelyn Houser shall not be entitled to any separate award of attorneys’ fees and costs.
5. INTERPRETATION AND ENFORCEMENT.
5.1 Cooperation between the Parties; Further Acts. Class Counsel shall use their reasonable best efforts to obtain the Court’s approval of this Agreement and all of its terms. The Parties shall reasonably cooperate with each other, and each Party, upon the request of any other Party, agrees to perform such further acts and to execute and deliver such other documents as are reasonably necessary to carry out the provisions of this Agreement.
5.2 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter contained herein, and all prior and contemporaneous negotiations and understandings between the parties shall be deemed merged into this Agreement.
5.3 Binding Effect. This Agreement shall be binding upon the Parties and, with respect to Named Plaintiffs and all Class Members, their spouses, children, representatives, heirs, administrators, executors, beneficiaries, conservators, attorneys, and assigns.
5.4 Arms’ Length Transaction; Materiality of Terms. The Parties have negotiated all the terms and conditions of this Agreement at arms’ length. All terms and conditions of this
17

Agreement in the exact form set forth in this Agreement are material to this Agreement and have been relied upon by the Parties in entering into this Agreement, unless otherwise expressly stated.
5.5 Captions. The captions or headings of the Sections and paragraphs of this Agreement have been inserted for convenience of reference only and shall have no effect upon the construction or interpretation of any part of this Agreement.
5.6 Construction. Determination of the terms and conditions of this Agreement has been by mutual agreement of the Parties. Each Party participated jointly in the drafting of this Agreement, and therefore the terms and conditions of this Agreement are not intended to be, and shall not be, construed against any Party by virtue of draftsmanship.
5.7 Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the United States.
5.8 Continuing Jurisdiction. The Court shall retain jurisdiction over the interpretation and implementation of this Agreement as well as any and all matters arising out of, or related to, the interpretation or implementation of this Agreement and of the Settlement contemplated thereby. The Court shall not have jurisdiction or authority to modify the terms of the Agreement or to increase Defendant’s payment obligations hereunder.
5.9 Waivers, etc. To Be in Writing. No waiver, modification or amendment of the terms of this Agreement, whether purportedly made before or after the Court’s approval of this Agreement, shall be valid or binding unless in writing, signed by or on behalf of the Named Plaintiffs and Census and then only to the extent set forth in such written waiver, modification, or amendment, subject to any required Court approval. Any failure by a Parties to insist upon the strict performance by any other Party of any of the provisions of this Agreement shall not be deemed a waiver of future performance of the same provisions or of any of the other provisions of this Agreement, and such Party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of this Agreement.
5.10 When Agreement Becomes Binding; Counterparts. This Agreement shall become valid and binding upon its complete execution, except that it shall be without force or effect if not approved by the Court other than as to any act or obligation that is required or contemplated to occur prior to the Court’s decision whether to preliminarily or finally approve the settlement. The Parties may execute this Agreement in counterparts, and execution in counterparts shall have the same force and effect as if all Parties had signed the same instrument.
5.11 Facsimile and Email Signatures. Any signature made and transmitted by facsimile or email for the purpose of executing this Agreement shall be deemed an original signature for purposes of this Agreement and shall be binding upon the Party whose counsel transmits the signature page by facsimile or email.
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WE AGREE TO THESE TERMS,
Dated: New York, New York April ___, 2016

PREET BHARARA United States Attorney for the Southern District of New York
By: ____________________________ LOUIS A. PELLEGRINO TARA M. La MORTE ELIZABETH M. TULIS Assistant United States Attorneys 86 Chambers Street, Third Floor New York, New York 10007 Tel.: (212) 637-2689/2746/2725 Email: louis.pellegrino@usdoj.gov tara.lamorte2@usdoj.gov elizabeth.tulis@usdoj.gov
Attorneys for the United States Department of Commerce and the U.S. Census Bureau

19

By:

.

Ad Adam Klein

OUTTEN & GOLDEN LLP
Adam T. Klein Justin M. Swartz Lewis M. Steel Ossai Miazad Sally J. Abrahamson Deirdre Aaron 3 Park Avenue, 29th Floor New York, NY 10016 Telephone: 212-245-1000

and

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Ray P. McClain* 1401 New York Ave., NW Washington, DC 20005

CENTER FOR CONSTITUTIONAL RIGHTS
Darius Charney 666 Broadway 7th Floor New York, NY 10012

COMMUNITY SERVICE SOCIETY
Judy Whiting 633 Third Avenue – 10th floor
New York, New York 10017

INDIAN LAW RESOURCE CENTER
Robert T. Coulter* 602 North Ewing Street Helena, MT 59601

COMMUNITY LEGAL SERVICES, INC.
Sharon Dietrich* 1424 Chestnut Street Philadelphia, PA 19102
LATINOJUSTICE PRLDEF
Jackson Chin 99 Hudson Street, 14th Floor New York, NY 10013

* Admitted pro hac vice
Attorneys for Plaintiffs and the Class

20

 
 Case 1:10-cv-03105-FM Document 303 Filed 10/02/14 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
EVELYN HOUSER, PRECIOUS DANIELS, FELICIA RICKETT-SAMUELS, CHYNELL SCOTT, and SCOTTY DESPHY,

USDCSDNY

DOCUMENf

ELECI'RONICAILY Fn1ID

DOC#:

DATE

« .. FILED: r:,f:-j ------~~-------

1

,

Plaintiffs, -against-

ORDER AMENDING THE COURT'S JULY 1, 2014 MEMORANDUM DECISION AND ORDER

PENNY PRITZKER, Secretary, United States Department of Commerce,

10cv3105-FM

Defendant.
---------------------------------------------------------------X

FRANK MAAS, United States Magistrate Judge.

On June 28, 2013, Plaintiffs filed a Motion for Class Certification, seeking to

certify the following classes pursuant to Rule 23(b)(2) for the liability phase of the case and for

class-wide injunctive relief: All African American and Latino applicants who appliedfor

temporary employment during the 20I 0 decennial and were harmed by one or both ofthe

following employment practices: (I) Defendant's use ofthe 30-day letter as a screening device;

(2) Defendant's use ofadjudication criteria to screen applicants. ECF No. 176 at 26.

In their motion, Plaintiffs also requested certification for post-liability monetary

relief claims under Rule 23(b)(3), or in the alternative of an issues class under Rule 23(c)(4), of

the following subclasses: All African American and Latino applicants who appliedfor

temporary employment during the 20I 0 decennial and were barredfor one ofthe following

Case 1:10-cv-03105-FM Document 303 Filed 10/02/14 Page 2 of 4
reasons: (1) based solely on the procedural requirements imposed by the 30-day letter; (2) based
solelv on the delav in adjudicatin~ the applicant; (3) based on exclusions that are not job
related. ECF No. 176 at 26. On December 16,2013, Defendant filed a Motion to Dismiss for Lack of Subject
Matter Jurisdiction ("Defendant's Motion to Dismiss"), seeking to dismiss Plaintiffs' Second Amended Complaint on the grounds that each of the named Plaintiffs lacked Article III standing to assert claims of disparate impact under Title VII of the Civil Rights Act of 1964, 42 U.S. C. §§ 2000e et ~("Title VII"). ECF No. 225.
On July 1, 2014, this Court issued a Memorandum Decision and Order on Plaintiffs' Motion for Class Certification and Defendant's Motion to Dismiss ("Order"). The Order dismissed the claims of one of the African-American named Plaintiffs, Vivian Kargbo, and the claims of both Latino named Plaintiffs, Ignacio Riesco and Anthony Gonzalez. For the reasons set forth in the Court's order, the Court concluded that Plaintiffs Kargbo, Riesco, and Gonzalez could not demonstrate an injury-in-fact sufficient to prove Article III standing. See ECF No. 265at 26-27. The Court also granted certification under Rule 23(b)(2) of a class for purposes of determining liability and affording injunctive relief. Because the Court found that both of the Latino named Plaintiffs lacked standing, the class definition in the Order was limited to "African-American applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by the Census Bureau's 30-day Letter, its Adjudication Criteria, or both." Id. at 60. The Order provided, however, that Plaintiffs could move to amend the Second Amended Complaint and class certification order in the event they were able to identify a suitable Latino class representative. Id.
2

Case 1:10-cv-03105-FM Document 303 Filed 10/02/14 Page 3 of 4
On July 29, 2014, Defendant notified the Court that it had discovered an error in
running the 5Clcction ccrtificatc5 for the geographic regions in which the named Plaintiffs could
have been considered for temporary employment with the 2010 Decennial Census. ECF No. 278. Defendant indicated that, as a result ofthis error, one or more of the Latino plaintiffs who had been dismissed by the Court's July 1, 2014 Order may, in fact, have had standing to bring their claims. Id. at 1-2. Defendant thereafter informed the Court on August 6, 2014, that based on the newly produced selection certificates, Plaintiff Anthony Gonzalez would, in fact, have appeared on at least one selection certificate and therefore would have been eligible for hire under the standard set forth by the Court in its Order. ECF No. 280 at 2.
In light of Defendant's recent disclosure and its acknowledgment that, pursuant to the Order, Plaintiff Gonzalez would have appeared as eligible on at least one selection certificate for his geographic region, the Court hereby concludes that Plaintiff Gonzalez has Article III standing to proceed as a class representative. Further, the Court grants Plaintiffs' unopposed motion to join Edward Zahnle and Alexis Mateo as named plaintiffs and proposed class representatives for Latinos who applied for temporary employment with Defendant during the 2010 Decennial Census and claim they were thereafter harmed by the Census Bureau's 30-day letter. Notwithstanding Defendant's agreement to not oppose Plaintiffs' motion to join Edward Zahnle and Alexis Mateo as named plaintiffs and proposed class representatives, Defendant preserves all Article III standing arguments raised in Defendant's Motion to Dismiss.
Accordingly, the Court amends its July 1, 2014 Order insofar as that Order dismissed Plaintiff Gonzalez and limited the certified class to African-American applicants who sought temporary employment during the 2010 Decennial Census. Mr. Gonzalez is hereby reinstated as a class representative. The class definition is amended as follows:
3

Case 1:10-cv-03105-FM Document 303 Filed 10/02/14 Page 4 of 4

The Plaintiffs' class shall be limited to (1) African-American
applicanw who 5ought temporary employment durin~ the 2010
Decennial Census and claim to have been harmed by the Census Bureau's 30-day Letter, its Adjudication Criteria, or both; and (2) all Latino applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by the Census Bureau's 30-day Letter, its Adjudication Criteria, or both.

Nothing in this Order is intended to prevent the Government from exercising its

right to challenge the Court's July 1, 2014 Order either through its motion for reconsideration,

via appeal, or through additional motion practice or at trial as appropriate; nor does the

Government waive any defenses as against the newly added Plaintiffs Gonzalez, Zahnle and

Mateo; nor do Plaintiffs waive any corresponding right to oppose such defenses or other relief

sought by Defendants.

The remainder of the Court's July 1, 2014 Order remains in effect in all other

respects.

SO ORDERED.

Dated:

New York, New York October 2, 2014

Copies to all counsel via ECF

United States Magistrate Judge

4

 
 Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 1 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 2 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YOR

ANTHONY GONZALEZ, PRECIOUS DANIELS, ALEXIS MATEO, FELICIA RICKETT-SAMUELS, CHYNELL SCOTT, SCOTTY DESPHY, and EDWARD ZAHNLE, on behalf of themselves and all others similarly situated, and CEPHUS HOUSER as the Trustee for the Trust Agreement of EVELYN HOUSER, individually,

-against-

Plaintiffs,

PENNY PRITZKER, Secretary, United States Department of Commerce,
Defendant.

CIVIL AC!ION NO. 10-CV-3 ~05 (FM)
ORI~INAL

[P9£?88fillq ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTI~·S FOR fiNAL
APPROVAL OF SETTLEMENT AND CERTIFICATION FOR DAMA ES OF $E SETTLEMENT CLASS, ATTORNEYS' FEES AND COSTS, AND SER E AWA~S
I
The above-entitled matter came before the Court on Plaintiffs' Unopposed Lotion fqo Final
Approval of Settlement and Certification for Damages ofthe Settlement Class, Pl~intiffs'
Unopposed Motion for Attorneys' Fees and Costs, and Plaintiffs' Unopposed Modon for Class
I
i Representative Service Awards ("Motions for Final Approval"). This Court grantdd class
I
certification on July I, 20 I4, pursuant to Rule 23(b)(2) for purposes ofliability for ~frican'
American applicants who sought temporary employment during the 20 I0 decennial census and
claim to have been harmed by Defendant's 30-day Letter, its criminal history adjudlcation criteria,
or both. This Court amended that Order on October 2, 2014, to include all Latino a~plicants who
sought temporary employment during the 20 I0 decennial census and claim to have ~een harrlied by
Defendant's 30-day Letter, its criminal history adjudication criteria, or both.
On April 22, 2016, the Court entered an Order preliminarily approving the fttlement and
authorizing notice to the class. ECF No. 352. Plaintiffs' proposed notice was mail~d on May 13,
2016. The Court held a fairness hearing on September 19, 2016 at I0:00. Having \considered the
I

Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 2 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 3 of 11

Motions for Final Approval, the supporting declarations, the arguments presente~ at the September
19, 2016 fairness hearing, and the complete record in this matter, and for good cduse shown,
DEC~EED: NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
I. JURISDICTION

This Court has jurisdiction over the subject matter of the litigation and over all parties to

this litigation, including all members of the Settlement Class, as defined below.

As used below, "Defendant" means Penny Pritzker, Secretary ofthe Unite~ States

Department of Commerce, in her official capacity, or her successor, and the U.S. Census Bureau.

II. NO DETERMINATION This Court hereby decrees that neither the Settlement Agreement, nor dhis Final '•

Approval Order, nor the fact of a settlement, are an admission or concession by Defendant of any

liability or wrongdoing.

III. CERTIFICATION OF SETTLEMENT CLASS
1. On April 22, 2016, the Court preliminarily certified the Settlement Cl~ss for Datnages

under Rules 23(b)(3) ofthe Federal Rules of Civil Procedure. ECF No. 352. The Court now

grants final certification as the requirements pursuant to Rule 23 have been met.

2. Plaintiffs allege that Defendant denied them and hundreds of thousand$ of other

African-American and Latino applicants the opportunity to fairly compete for temPorary

employment positions with the 2010 Decennial Census based on the criminal background check
screening process used by the Census Bureau in violation of Title VII of the Civil ~ights Act of

1964.

3. Pursuant to FRCP 23(b)(2) and 23(b)(3), the Court certifies the following Settlement

Class: for purposes ofthe programmatic and class member relief provided in the Settlement

Agreement, a nationwide class certified under Federal Rules of Civil Procedure 234) and 23&b)(3)

2

!

Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 3 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 4 of 11

comprised of all African-American and Latino applicants who sought temporary! employment

during the 2010 decennial census and claim to have been harmed by Census's 30-day Letter, its
I
Adjudication Criteria, or both (the "Settlement Class").

4.

I
The Court hereby FINDS and CONCLUDES that, for purposes ofthls settlement, the

Settlement Class set forth above satisfies all of the requirements for certification Lnder Rule 23(a)
and Rule 23(b)(3). There are hundreds ofthousands of Settlement Class Membe~, satisfying the

numerosity requirement. Named Plaintiffs are typical and adequate representativfs ofthe Settlement Class they seek to represent because their interests are co-extensive w~h those of

Settlement Class Members and they have retained experienced counsel to represelbt them.

Plaintiffs raise common questions, and the Settlement Class satisfies the predomi~ance and

superiority requirements for certification under Rule 23(b)(3) for settlement class purposes.

The Court CERTIFIES the Settlement Class under Rules 23(a) and 23(b)(3).

IV. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE. I

5. FRCP 23(e) requires court approval for a class action settlement to ~nsure that it is

procedurally and substantively fair, reasonable and adequate. Fed. R. Civ. P. 23(e).

6. The Court hereby finally approves the Settlement as set forth in the! Settlement
i
Agreement. The Court has reviewed the terms of the proposed Settlement Agreement along with

its exhibits, including specifically the programmatic and class member relief, and Plaintiffs'

Motions for Final Approval.

7. Based on a review ofthose papers and the Court's familiarity with the case, the

Court concludes that the Settlement is the result of extensive, arm's-length negotiations and is in

all respects, fair, reasonable, and adequate. See Wal-Mart Stores, Inc. v. Visa US..-1. Inc., 396

F.3d 96, 116 (2d Cir. 2005); Duling v. Gristede 's Operating Corp., 267 F.R.D. 86,99 (S.D.N.Y.
'
2010); Capsolas v. Pasta Res., Inc., No. 10 Civ. 5595,2012 WL 1656920, at *1 (SJo.N.Y. May
3

Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 4 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 5 of 11

9, 20 12). The programmatic and class member relief are meaningful, especially \when weighed against the risks of ongoing litigation.

8. The parties have agreed to the tailored programmatic relief as set forth in the

Settlement Agreement and accompanying Scope of Work document. The partie~ have jointly

~onsultants selected Industrial Organizational Psychologists ("lOs") to work as independent

to

Defendant relative to the selection and hiring of temporary employees for the 2020 decennial

census. The lOs will work together, in consultation with Defendant, to develop alrecommended

validated structure and selection process for the hiring of temporary employees fdr various

operations of the 2020 decennial census.

9. The parties have also agreed to individualized class member relief, as set forth in
the Settlement Agreement. Settlement Class Members will choose between two fGrms of class member relief: Class A Filers or Class B Filers. Class Members who wish to reso'lve issues
associated with their criminal history records will have the option to work with a !ecords
Assistance Project ("Group A Filers") to receive individualized education and ser~ices directed at
minimizing the effect of criminal records on employment opportunities. Ex. A (S~ttlement
I '
Agreement)~ 3.3(A). The costs and expenses for this project come from the settlement fund,
which allocates Five Million Dollars ($5,000,000.00) to fund the Records Assistan~e Project and
i
class representative Service Awards approved by the Court. Class Members who do not request
assistance with their criminal history records and instead seek employment opportunities with
Census, will receive early notice of the hiring for temporary jobs for the 2020 decehnial census
("Group B Filers"). The parties agree to work together to provide meaningful earl)'lnotice that
will assist Group B Filers in pursuing temporary job opportunities for the 2020 decdnnial hiring,
including information about the criminal background check process.

4

Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 5 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 6 of 11
I0. The settlement is procedurally and substantively fair, reasonable, ~dequate, and is
not a product of collusion. See Fed. R. Civ. P. 23(e); Reyes v. Altamarea Group lLC, No. IO Civ. 645I, 20I I WL 4599822, at *4 (S.D.N.Y. Aug. I6, 20I I); CityofDetroitv. Grilfnell Corp., 495
I
F.2d 448,462-63 (2d Cir. I974). The assistance of an experienced mediator in the settlement process also confirms that the settlement is not collusive.
II. The Settlement Fund constitutes the total settlement cash outlay by Defendant in connection with the resolution ofthis Action. No other money shall be separately~aid by Defendant in connection with this settlement, except certain implementation costs pfthe programmatic relief, such as the lOs' compensation, as outlined in the Settlement 4greement.
12. The Settlement Fund is inclusive of payment for: (a) all amounts paid to satisfY the class member relief, including the Records Clearance Project; (b) all amounts paid to Named Plaintiffs for Court-Approved Service Awards; (c) all attorneys' fees and costs awarded by the Court, including those in connection with securing Court Approval ofthe settlement and the
I
claims process and the monitoring by Class Counsel of the Settlement Agreement; Kd) all costs in connection with the Settlement Fund including, but not limited to, those related to ipvesting and liquidating the Settlement Fund; and (e) the settlement administrator's fees and cost;. The Settlement Fund does not include the costs of the programmatic relief, which costs will be borne by Defendant directly.
13. Having considered the strengths and weaknesses of the Plaintiffs' c•se versus the benefits of the Settlement; the likely complexity, length, and expense of further litigation; the limited opposition to the Settlement among the Settlement Class; the opinion of coblpetent counsel, and the substantial amount of discovery and litigation already undertaken,:the Court
I finds that the Settlement is fair, reasonable, and adequate, and well within the rang~ of other settlements that have obtained final approval by federal courts.
5

Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 6 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 7 of 11

14. The Court further finds that the response ofthe Settlement ClasJMembers to the

Settlement Agreement supports approval ofthe Settlement. As ofthe date ofthlis Order, only
I
sixteen individuals have opted out ofthe Settlement. This is approximately .oot% of the
i
Settlement Class. This is in contrast to the high number of the Settlement Class: Members who
already have filed Claim Forms (5,808). The individuals who have opted-out a~i listed in

Exhibit A to this Order.
I5. The Court has considered the objections to the Settlement that w~re not
withdrawn, and overrules all such objections on the bases that: (a) for settlemen~purposes1
'
Rules 23(a)(2)-(4) are satisfied; (b) the programmatic relief is fair, reasonable, a~d adequate; I
i
and (c) the class member relief, namely the Records Assistance Project and the a~vance notice

of hiring, are fair, reasonable, and adequate.

16. The Court finds that the Notice effectuated was the best practicabk notice under

the circumstances, and was accomplished in all material respects, as set forth in the Declaration

of Abigail Schwartz on behalf of the Claims Administrator, Rust Consulting, Inc.~
!
i I 7. The Notice provided adequate notice of these proceedings and the \Settlement
i
Agreement to all parties entitled to such notice. The distribution of the Notice ful~ met the

requirements of Rule 23 ofthe Federal Rules of Civil Procedure, satisfied the req.irements of

constitutional due process and any other applicable law.

18. The Notice also included the exact amount ofthe requested servic~ awards for

the Named Plaintiffs. No member of the Settlement Class filed any objection to t~e service

awards, which the Court takes as an indication that the Settlement Class values th~ efforts of

the Named Plaintiffs on behalf of the class. Accordingly, the Court approves serv~ce awards of

i

$I 0,000.00 to each of the ten Named Plaintiffs.

'

6

Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 7 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 8 of 11
The Settlement is hereby APPROVED and incorporated herein and shaJI become effective according to its terms. V. RELEASE AND DISMISSAL OF CLAIMS WITH PREJUDICE. ,
I
19. Upon the Effective Date of the Settlement, each Settlement ClasJ Member who has not excluded him or herself will release the Defendant from all claims that Were brought or could have been brought during the class period. The Settlement Class Membeirs release Census from all claims arising from or relating to the hiring and employment e$gibility
I
procedures for the 20 I0 decennial census, including but not limited to the clairris and facts alleged in the operative complaint and the underlying EEOC charges, as well a~ claims a~ainst Census for attorneys' fees and costs. VI. AWARD OF ATTORNEYS' FEES AND COSTS
20. The Court awards Class Counsel an award of$8,327,088.00 in feds and $1,672,912.00 in costs for their efforts in support ofthis litigation.
21. Class Counsel engaged considerable resources in the prosecution ~fthis case I
over the course of approximately six years. 22. Class Counsel are nationally recognized employment class action ~itigators. See,
I
e.g., Aros v. United Rentals, Inc., Nos. IO Civ. 73, 1I Civ. I28I, II Civ. I282, I t:Civ. I283, I I Civ. 1284, 1I Civ. I285, 20I2 WL 3060470, at *6 (D. Conn. July 26, 20I2) (the ~ttomeys of
I
"Outten & Golden LLP ... are experienced employment lawyers with good reput..tions among the employment law bar. They have prosecuted and favorably settled many empJJyment law class actions."); Damassia v. Duane Reade, Inc., No. 04 Civ. 88I9, No. 04 Civ. 2J95, 2009 WL 5841128, at *3 (S.D.N.Y. July 27, 2009) (noting that Outten & Golden "has substdntial experience prosecuting and settling employment class actions").
7

Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 8 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 9 of 11
I
23. Outten & Golden's resources played a significant role in Plainti~s' counsel's
ability to pursue this litigation without compensation over the past six years. sJe Heng Chan v.
t
Sung Yue Tung Corp., No. 03 Civ. 6048, 2007 WL 1373118, at *3-6 (S.D.N.Y. ~ay 8, 2007)
i
(higher rates where firm overhead benefitted plaintiffs); Tatum v. City ofNew Y~rk, No.~ Civ.
4290,2010 WL 334975, at *4 (S.D.N.Y. Jan. 28, 2010) ("the size ofthe firm m~y also be
I
considered as a factor" in determining rates).
24. The nonprofit Class Counsel were also important advocates in th~ prosecution of
!
this case. Together, Class Counsel's skills, experience, and resources contribute~ to the successful prosecution ofthis six-year litigation effort.
25. Although Class Counsel had no guarantee of any compensation in pursuing this litigation, and has worked without compensation for six years, they achieved sub~tantial success in litigation the claims on behalf of the class.
26. The award to Class Counsel of$8,327,088.00 in fees is approximately
I
$1,206,700.56 less than their totalloadstar as of August 3, 2016, and does not include all the work that Class Counsel has done since August 3, 2016, or will do in the future.
27. In light ofthe above, the award of$8,327,088.00 in fees and $1,672,912.00 in costs is a reasonable award. VII. SERVICE AWARDS TO NAMED PLAINTIFFS
28. The Court finds that a service award of$10,000 to each Named Pl~ntiff Anthony Gonzalez, Ignacio Riesco, Precious Daniels, Alexis Mateo, Felicia Rickert-Samuels,
I
Chynell Scott, Vivian Kargbo, Scotty Desphy, Edward Zahnle, and Cephus Houset (as the Trustee for the Trust Agreement of Evelyn Houser), is reasonable.
8

' '
Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 9 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 10 of 11
29. Service awards are common in class action cases and serve to cJnpensate plaintiffs for the time and effort expended in assisting the prosecution of the litikation, the risks
incurred by becoming and continuing as a named plaintiff, and any other burde~s sustained by
' the plaintiffs. See Reyes v. Altamarea Group LLC, No. 10 Civ. 6451,2011 WL 4599822, at *9 (S.D.N.Y. Aug. 16, 2011). VIII. FINAL APPROVAL OF SETTLEMENT
30. Without affecting the finality of this Settlement Order and Final ~dgment, the Court retains continuing jurisdiction over: (a) implementation of the Settlement:Agreement and programmatic relief contemplated by the Settlement Agreement, until all ads agreed to be performed pursuant to the Settlement Agreement have been performed; and (b) ~II parties to this action and Settlement Class Members for the purpose of enforcing and administering the Settlement Agreement.
31. This Court hereby dismisses this action with prejudice as to all Settlement Class Members. By operation ofthis Order, all released claims of Settlement Class M~mbers and Named Plaintiffs are fully, finally and forever released, relinquished and discharged pursuant to the terms of the Settlement Agreement, other than the individuals listed in Ex,ibit A,
attached hereto, which sets forth the names of those individuals who have timet~ and properly
' excluded themselves from the Settlement Class. The Court has reviewed the rel4ase provisions in the Settlement Agreement and finds the releases to be fair, reasonatle and enforceable under applicable law. All claims released pursuant to the Settlemen~ Agreement are dismissed with prejudice as to all Settlement Class Members other than the i~dividuals
i
listed in Exhibit A to this Order.
9

J •
Case 1:10-cv-03105-FM Document 377 Filed 09/20/16 Page 10 of 10 Case 1:10-cv-03105-FM Document 373-15 Filed 09/02/16 Page 11 of 11
'
32. This Order and the Settlement Agreement are binding on all seJement Class
i
Members, other than the individuals listed in Exhibit A to this Order. Neither the Settlement
Agreement nor this Order nor the fact of a settlement are an admission or conc~Ission by
'
Defendant or of any liability or wrongdoing whatsoever, or a finding by this cJurt as to the
merits of any claim or defense asserted or that could have been asserted in this Action.
33. As ofthe Effective Date ofthe Settlement, the action shall automli:ttically be
dismissed with prejudice, except that the Court will retain continuing jurisdictidn as set forth in paragraph 30 above.

It is so ORDERED this.(o~day of Scp~L , 2016.

~

Honorab Frank Maas

I 1

United tates Magistrate Judge

10

 
 851 F.Supp.2d 688 (2012)
Eugene JOHNSON, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v.
John E. BRYSON, Secretary, United States Department of Commerce, Defendant.
No. 10 Civ. 3105(FM).
United States District Court, S.D. New York.
March 22, 2012.
694*694 Adam T. Klein, Justin Mitchell Swartz, Lewis M. Steel, Melissa E. Pierre-Louis, Ossai Miazad, Samuel Rand Miller, Rachel Megan Bien, Outten & Golden, LLP, Darius Charney, Lansner & Kubitschek, Jackson Chin, Puerto Rican Legal Defense and Education Fund, Inc., Judith Melissa Whiting, Paul Francis Keefe, Community Service Society, Richard F. Bellman, Anti-Discrimination Center of Metro New York, Inc., Anjana Samant, New York, NY, Robert T. Coulter, Indian Legal Resource Center, Helena, MT, Michael T. Kirkpatrick, Public Citizen Litigation Group, Jane Dolkart, Ray P. McClain, Sarah Crawford, Audrey Jordan Wiggins, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Sharon Dietrich, Community Legal Services, Inc., Philadelphia, PA, for Plaintiffs.
Allison D. Penn, Natalie Nancy Kuehler, Tara Marie La Morte, Daniel Post Filor, New York, NY, for Defendant.
DECISION AND ORDER
FRANK MAAS, United States Magistrate Judge.
The plaintiffs in this putative class action ("Plaintiffs") allege that the process by which the United States Census Bureau ("Census Bureau") screens applicants for temporary jobs for the decennial census is racially discriminatory and therefore violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Specifically, the Plaintiffs challenge (1) the Census Bureau's policy requiring all applicants with criminal records to provide "official court documentation" of their prior arrests and convictions within 30 695*695 days after their receipt of a demand letter, and (2) the criteria the Census Bureau uses to determine whether an applicant who complies with such a demand is suitable for employment. The Plaintiffs contend that the Census Bureau's screening practices are neither job-related nor consistent with business necessity, and that they disproportionately preclude African-Americans, Latinos, and Native Americans from obtaining employment with the Census Bureau because these groups have higher arrest and conviction rates than Caucasians.

On September 10, 2010, the Census Bureau filed a motion to dismiss the Plaintiffs' first amended complaint. (See ECF No. 35 ("First Amended Complaint" or "FAC")). On March 14, 2011, I granted in part and denied in part that motion. See Johnson v. Locke, No. 10 Civ. 3105(FM), 2011 WL 1044151 (S.D.N.Y. Mar. 14,2011) ("Johnson I"). More specifically, the Census Bureau's motion to dismiss was granted without prejudice as to the individual claims of plaintiffs Felicia Rickett-Samuels ("Rickett-Samuels") and Sandra Anderson ("Anderson") and the Plaintiffs' class claims. The individual claims of the remaining Plaintiffs survived.
Presently before the Court are two subsequent motions: (1) the Census Bureau's motion to dismiss the Plaintiffs' claims for declaratory and injunctive relief (ECF No. 61); and (2) the Plaintiffs' motion for leave to file a second amended complaint ("Second Amended Complaint" or "SAC") (ECF No. 52). For the reasons set forth below, the Census Bureau's motion to dismiss is denied; the Plaintiffs' motion for leave to amend is granted in part and denied in part.
I. Background
For a more thorough recitation of the facts, see Johnson I at *1-6. Unless otherwise noted, the following facts are either undisputed or presented in the light most favorable to the Plaintiffs.
A. Census Bureau Hiring Process
Pursuant to Article I, Section 2 of the United States Constitution, the Census Bureau conducts a population and housing census every ten years. In furtherance of the 2010 decennial census, the Census Bureau hired over one million temporary workers out of approximately 3.8 million applicants. (SAC ¶¶ 1-2). Almost every applicant was subjected to a criminal background check as a prerequisite for employment. (Id. ¶ 2). The background checks consisted of running the applicants' names and personal information through a Federal Bureau of Investigation ("FBI") database in an attempt to discover any arrest records associated with the applicants. (Id. 112). The Census Bureau then sent each applicant with a prior arrest record a form letter ("30-day Letter") requiring the applicant to submit "OFFICIAL COURT documentation on any and all arrest(s) and/or conviction(s) in [the applicant's] past" within 30 days to remain eligible for employment. (Id. ¶ 15 & Ex. A). Applicants who wished "to dispute the identity of the arrest record in question" were instructed, in the alternative, to submit a set of original fingerprints within 30 days. (Id.). Significantly, the Census Bureau sent 30-day Letters to applicants with arrest records even if they had not been convicted of a crime. The background checks also had no temporal limitations. Accordingly, applicants with decades-old arrests, including arrests when they were juveniles, received 30-day Letters. (Id. ¶ 12).
Approximately 93 percent of the 30-day Letter recipients-roughly 700,000 individuals failed to provide court documentation or fingerprints. (Id. ¶ 12). According to the Plaintiffs, applicants who received a 696*696 30-day Letter and who did provide the requested documentation were subjected to "an arbitrary and irrational screen [(the `Adjudication Criteria')] whereby even those who had never been convicted, those who had their records

officially expunged, and those with very minor and old offenses were excluded from" consideration for positions with the Census Bureau. (Id.).
The Plaintiffs contend that these Census Bureau policies have a racially discriminatory impact, in violation of Title VII, because the arrest and conviction rates of AfricanAmericans, Latinos, and Native Americans far exceed those of Caucasians. (Id. ¶ 30).
B. Original Plaintiffs
Plaintiffs Eugene Johnson ("Johnson"), Evelyn Houser ("Houser"), Anthony Gonzalez ("Gonzalez"), Ignacio Riesco ("Riesco"), and Precious Daniels ("Daniels") (collectively, the "Original Plaintiffs") have individual claims that survived the Census Bureau's first motion to dismiss.[1] See Johnson I, 2011 WL 1044151, at *14. Each of these Original Plaintiffs is either African-American or Latino, and each (1) applied for a temporary position for the 2010 census; (2) received a 30-day Letter because of a prior arrest or conviction; and (3) failed to secure employment with the Census Bureau. Johnson and Riesco timely submitted official court documentation, but were not hired because most temporary jobs had been filled by the time they were placed on the "eligible for hire" list. Houser was deemed ineligible for hire because she mistakenly submitted fingerprints instead of court documentation. Daniels was deemed ineligible because no court records relating to her arrest existed, making it impossible for her to comply with the instructions in the 30-day Letter. Gonzalez was deemed ineligible because he submitted a printout of his criminal record and a reference from his employer instead of the required official court documents. See Johnson I,2011 WL 1044151, at *3-4.
In Johnson I. the Court determined that each Original Plaintiff stated a claim upon which relief could be granted. As the Court explained, Houser had exhausted her administrative remedies before commencing this action, and the remaining Original Plaintiffs could "piggyback" onto Houser's claims because of the "single filing rule." See 2011 WL 1044151, at *9-11. However, because none of the Original Plaintiffs complied with the heightened exhaustion requirements for bringing class claims under Title VII, their class claims 697*697 were dismissed. See id. at *13 (citing 29 C.F.R. 1614.204(a)(2)).
C. Dismissed Plaintiffs
In Johnson I. the Court also dismissed the claims of Rickett-Samuels and Anderson (together, the "Dismissed Plaintiffs") without prejudice. Id. at *10, *12. Rickett-Samuels' claim was dismissed because she had filed an Equal Employment Opportunity ("EEO") complaint but failed to exhaust her administrative remedies and thus could not piggyback on Houser's claim. Anderson, who is Native American, also was unable to piggyback on Houser's claim because Houser's EEO complaint failed to allege that the Census Bureau discriminated against Native Americans. Both Dismissed Plaintiffs now seek to reassert claims in the proposed Second Amended Complaint.[2]
D. New Plaintiffs

The proposed Second Amended Complaint also seeks to assert claims on behalf of three new plaintiffs — Chynell Scott ("Scott"), Vivian Kargbo ("Kargbo"), and Scotty Desphy ("Desphy") (collectively, the "New Plaintiffs") — primarily in an effort to resurrect the Original Plaintiffs' dismissed class claims. See Johnson I, at *14 n. 11 ("As a practical matter, this disposition will not preclude the Plaintiffs from pursuing their class claims since at least some of the administrative complaints containing class claims that the Census Bureau has held in abeyance pending the outcome of this lawsuit will presumably now be permitted to proceed."). Each of the New Plaintiffs timely filed an EEO complaint asserting class-wide claims pursuant to 29 C.F.R. § 1614.204. (See SAC ¶¶ 38-40).
Scott is an African-American resident of Philadelphia who applied for a temporary position with the Census Bureau in 2010. She received a 30-day Letter because she had been charged with four misdemeanors and two summary offenses in July 2008. Those charges arose out of an incident in which Scott allegedly left her two children unattended in her car for approximately ten minutes. The misdemeanor charges subsequently were dropped, and Scott pleaded guilty to the two summary offenses. (Id. ¶¶ 98-99). In response to the 30-day Letter, Scott sent the Census Bureau a "court summary" concerning her case. On February 3, 2010, the Census Bureau informed Scott that she would not be hired because of her criminal record. (Id. ¶ 100).
Kargbo is an African-American woman living in Dorchester, Massachusetts. Kargbo applied for a temporary job with the Census Bureau in March 2010. She received a 30-day Letter because of two charges against her that had been dismissed 698*698 and sealed under Massachusetts law. (Id. ¶¶ 102-05). Unable to ascertain which court documents the Census Bureau required, she sent her fingerprints instead. (Id. ¶ 106). The Census Bureau did not hire her and failed to return her repeated telephone calls requesting information regarding the status of her application. (Id. ¶ 107).
Desphy is an African-American woman residing in Philadelphia. In 1982, Desphy was arrested on an assault charge after she was involved in an altercation with another woman. Desphy contends that she acted in self-defense. The judge imposed a one-year term of probation, but told her that the record would be expunged if she successfully completed her probation, which she did. (Id. ¶¶ 109-11). Desphy applied for a temporary position with the Census Bureau in February 2010 and subsequently received a 30-day Letter. Desphy responded with a written explanation of her conviction, along with two letters of reference. Despite those submissions, on March 4, 2010, Desphy received a letter from the Census Bureau denying her application for employment. (Id. ¶ 110).
II. Discussion
A. Defendant's Motion to Dismiss
1. Standing and Mootness
Standing is "the threshold question in every federal case, determining the power of the court to entertain the suit." Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343

(1975)). It is therefore appropriate that the Court first address the Census Bureau's motion to dismiss the Plaintiffs' claims for injunctive and declaratory relief for lack of standing. The Census Bureau contends that the Plaintiffs lack standing because: (a) hiring for the 2010 decennial census is complete; (b) the background check policy for the 2020 decennial census has yet to be developed; and (c) the Plaintiffs' alleged injuries are insufficiently imminent to justify equitable relief because hiring for the 2020 census will not begin for several years. (ECF No. 62 ("Def's Mem.") at 1-2). The Plaintiffs counter that their injuries are sufficiently imminent because the Census Bureau is unlikely to change its background check policy prior to the commencement of hiring for the 2020 census, for which they plan to seek temporary positions as soon as those positions become available. (See ECF No. 78 (Pl.'s Opp'n) at 1-2, 9). The Plaintiffs also cast the relevant question in terms of mootness, not standing, because, in their view, the Plaintiffs clearly had standing to seek equitable relief at the time they commenced this suit. (Id. at 1-2). For the reasons set forth below, the Plaintiffs have standing to seek injunctive and declaratory relief, and their claims are not moot. The Census Bureau's motion therefore must be denied.
a. Applicable Law
i. Standing
As the Supreme Court explained in Lujan v. Defenders of Wildlife:
the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, 699*699 that the injury will be redressed by a favorable decision.
504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations, internal quotation marks, ellipses, and brackets omitted). The burden is on the Plaintiffs to establish these elements of constitutional standing, which are to be "evaluated at the time the complaint is filed." Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F.Supp.2d 160, 167 (S.D.N.Y.2006); see also Disabled in Action of Metro. N.Y. v. Trump Int'l Hotel & Tower, No. 01 Civ. 5518(MBM), 2003 WL 1751785, at *7 (S.D.N.Y. Apr. 2, 2003) ("Events occurring after the lawsuit has been filed may be relevant to whether the claim has become moot but are not relevant to whether a plaintiff has standing in the first instance.").
In determining "whether the alleged injury is concrete and particularized," courts must "assess whether the injury affect[s] the plaintiff in a personal and individual way, to confirm that the plaintiff has a personal stake in the controversy and avoid having the federal courts serve as merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding." Baur v. Veneman, 352 F.3d 625, 632 (2d Cir.2003) (citation and internal quotation marks omitted); see also Sullivan v. Syracuse Hous. Auth., 962 F.2d 1101, 1106 (2d Cir.1992) ("[C]ourts generally should refrain from

adjudicating abstract questions of wide public significance which amount to generalized grievances[.]") (internal quotation marks omitted).
The Census Bureau relies on City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), to support its contention that the Plaintiffs lack standing to seek injunctive relief. In that case, the plaintiff was injured when he was placed in a "chokehold" following a routine traffic stop, even though the plaintiff did not resist arrest or otherwise threaten to use force. The plaintiff sought compensatory damages as well as an injunction against the future use of "chokeholds" by the police department unless the "proposed victim reasonably appeared to be threatening the immediate use of deadly force." Id. at 95, 103 S.Ct. 1660. The Court held that the plaintiff could seek monetary damages for his injuries, but could not seek injunctive relief because his alleged risk of future harm was too attenuated. Conceding that the plaintiff "may have been illegally choked by the police," id. at 105, 103 S.Ct. 1660, the Court determined that he had failed to establish a "sufficient likelihood that he will again be wronged in a similar way," id. at 111, 103 S.Ct. 1660. The Census Bureau argues that the present case is analogous because the Plaintiffs have failed to demonstrate a "sufficient likelihood" that they will apply again for employment with the Census Bureau and be subjected to the same background check procedures. (See Def.'s Mem. at 9-11).
ii. Mootness
Although standing tests "[t]he requisite personal interest that must exist at the commencement of the litigation," mootness tests whether the issue remains live throughout the course of litigation. U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 395-97, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); see also Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir.1994) ("In general, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.") (internal quotation marks omitted); Stauber v. City of N.Y., No. 03 Civ. 9162(RWS), 2004 WL 1593870, at *19 (S.D.N.Y. July 16, 2004) ("[T]he alleged abandonment of [a] policy presents an issue of mootness rather than standing."). Consequently, "[i]n the administrative context, an agency can moot a request for relief by showing 700*700 that the policy complained of has been replaced and that `there appears to be no likelihood of a return to the old rule.'" Sorbello v. Laird, No. 06-CV-948 (JG), 2007 WL 675798, at *4 (E.D.N.Y. Feb. 28, 2007) (quoting McKenna v. Peekskill Hous. Auth., 647 F.2d 332, 334 (2d Cir. 1981)).
A case also is moot when "the parties lack a legally cognizable interest in the outcome." Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). However, "a party's `voluntary cessation of allegedly unlawful conduct ... [ordinarily] does not suffice to moot a case.' Accordingly, a party `claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'" N.Y. Pub. Interest Research Grp. v. Whitman,321 F.3d 316, 327 (2d Cir.2003) (internal citation omitted) (quoting Friends of the Earth v. Laidlaw Envtl., Servs., 528 U.S. 167, 174, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)): see Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2034, 179 L.Ed.2d 1118 (2011) (no live controversy exists when "subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur") (internal quotation marks and brackets omitted).

b. Application of Law to Facts
As a preliminary matter, the Plaintiffs correctly characterize the issue as one of mootness rather than standing since the elements of standing are "evaluated at the time the complaint is filed." Access 4 All, 458 F.Supp.2d at 167. The Plaintiffs clearly had standing to seek injunctive relief when the case was commenced because the Census Bureau concedes that hiring for the 2010 census still was underway at the time the Plaintiffs filed their original complaint ("Original Complaint" or "Compl."). (See Def.'s Mem. at 12 (the Census Bureau "ceased sending 30-day letters to 2010 Decennial applicants on July 31, 2010," more than three months after the Plaintiffs filed their Original Complaint)).
Although the Census Bureau is correct that "[s]tanding must be demonstrated for each form of relief sought," (ECF No. 87 (Def.'s Reply) at 3 (citing Laidlaw, 528 U.S. at 185, 120 S.Ct. 693) (emphasis in original)), it is not correct in its assertion that the Plaintiffs are seeking "prospective injunctive and declaratory relief concerning... future Decennials" separate and apart from an injunction relating to the 2010 Census, (see id.). Instead, the Second Amended Complaint merely seeks a single injunction, enjoining the Census Bureau from "engaging in each of the unlawful policies, practices, customs and usages set forth herein," and a declaratory judgment that the practices complained of violate Title VII. (SAC ¶¶ 15152). Because the allegedly unlawful polices complained of in the Second Amended Complaint were ongoing at the time the Plaintiffs filed their Original Complaint, they have standing to seek injunctive relief, and their claims seeking equitable relief should be dismissed only if they are moot. See Maneely v. City of Newburgh, 208 F.R.D. 69, 72-74 (S.D.N.Y.2002) (issue was mootness, not standing, when the challenged policy was withdrawn shortly after the plaintiff filed his notice of claim).[3]
701*701 The Plaintiffs' claims for injunctive and declaratory relief are moot only if the Census Bureau can show that the offending policies are no longer in place andthat "it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." N.Y. Pub. Interest Research Grp., 321 F.3d at 327 (internal quotation marks omitted). The Census Bureau contends that it meets this standard because it allegedly stopped using the 30-day Letter and Adjudication Criteria once it concluded hiring for the 2010 census, and because "future background screening policies are likely to change dramatically" as a consequence of changes to the way in which future censuses will be conducted. (Def.'s Mem. at 14). According to the Census Bureau, a substantial portion of the 2020 census will be conducted via the internet, and new federal background check requirements will change the way the Census Bureau screens applicants for temporary employment. (See Decl. of Sandra Patterson, dated June 28, 2011 (ECF No. 62) ("Patterson Decl."), ¶¶ 10-13 (citing Homeland Security Presidential Directive 12 ("HSPD 12"))). The Census Bureau also contends that any potential injury to the Plaintiffs is speculative because the background screening policies for 2020 census workers will not be developed until "sometime after 2015." (Decl. of Frank A. Vitrano, dated June 27, 2011 (EFC No. 64) ("Vitrano Decl."), ¶¶ 8, 10-11).
Despite these assertions, the Census Bureau has failed to meet its "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again." Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (internal quotation marks and brackets omitted). The changes to the way in which the census might be conducted in 2020 that the

Census Bureau suggests will be implemented do not establish that the use of the 30-day Letter and Adjudication Criteria could not reasonably recur. Thus, among other things, the Census Bureau has failed to demonstrate that temporary employees will not be hired for the 2020 census, or that those employees will not be subjected to background check procedures substantially similar to those used with respect to applicants for the 2000 and 2010 censuses. And while the declaration of the Assistant Division Chief for the Census Hiring and Employment Check Office asserts that the Census Bureau "has traditionally changed its background check process with each Decennial Census, and [the Census Bureau] will likely make major changes for the 2020 Decennial Census," (Patterson Decl. ¶ 14), the Census Bureau has failed to demonstrate that any such changes will include the elimination of the 30-day Letter that it allegedly has used for the last twenty years. (See SAC ¶ 5 (when the Census Bureau "hired temporary workers for the 2000 decennial census, it used the same background screening process as it used for the 2010 census")).
The Census Bureau's reliance on HSPD 12 also is misguided, because that directive "mandates a federal standard for secure and reliable forms of identification," not background checks. (Patterson Decl. Ex. 9 at 1 (emphasis added)). HSPD 12 also was promulgated in 2004, several years before the background screening of applicants for the 2010 Census commenced. (Id.) Consequently, it does not follow that HSPD 12 will necessarily have any bearing on the background screening process of applicants for temporary positions for the 2020 Census.
In sum, although it may be true that the Census Bureau will not begin to develop background screening policies for the 2020 census until "sometime after 2015," (Vitrano Decl. ¶¶ 8-11), the Census Bureau has failed to meet its heavy burden of establishing that "subsequent events ma[ke] it 702*702 absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," Camreta,131 S.Ct. at 2034. The Plaintiffs' claims for equitable relief therefore are not moot.
2. Ripeness
In the alternative, the Census Bureau contends that the Plaintiffs' claims are not ripe for review. "Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 80708, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted). "[D]etermining whether a dispute is ripe for review requires a two-pronged analysis of [a] whether the issues presented to the district court are fit for review, and [b] what hardship the parties will suffer in the absence of review." Connecticut v. Duncan, 612 F.3d 107, 113 (2d Cir.2010) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
As discussed with respect to mootness, the Plaintiffs allege that the challenged policies have been in place "since at least the initiation of the 2000 census," and will likely again be applied when hiring for the 2020 census commences. (SAC ¶ 146). This case thus is

distinguishable from cases in which courts have determined that pre-enforcement challenges to agency decisions are unripe. See, e.g., Duncan, 612 F.3d at 114 (challenge to agency decision unripe because Secretary had yet to take final action); Nevada v. Dep't of Energy, 457 F.3d 78, 84 (D.C.Cir.2006) (challenge to preliminary agency decision unripe because agency had not yet made final determination); Worth v. Jackson, 451 F.3d 854, 861-62 (D.C.Cir. 2006) (challenge to agency policy unripe because policy was not yet written).
The Census Bureau does not dispute that the 30-day Letter and Adjudication Criteria were used in hiring temporary workers for the 2010 Census. Accordingly, this is not a case in which the agency has demonstrated an "interest in crystalizing its policy before that policy is subjected to judicial review." Nevada, 457 F.3d at 84. Nor has the Census Bureau demonstrated that the Plaintiffs' expressed interest in applying for positions in furtherance of the 2020 Census is disingenuous or unrealistic. (See SAC ¶¶ 96, 109; Decl. of Precious Daniels, dated July 28, 2011 (ECF NO. 80), 16; Decl. of Anthony Gonzalez, dated July 27, 2011 (ECF No. 82), ¶ 6).
Applying the two-pronged test outlined above, this case is fit for review because the challenged policies were applied to all applicants for temporary positions in connection with the 2010 census. The Court thus is not left in a position where it "lack[s] sufficient confidence in [its] powers of imagination to ascertain [the policies'] contours." See Worth, 451 F.3d at 862 (internal quotation marks omitted). Additionally, the Plaintiffs would likely suffer hardship in the absence of review because of the relatively short time period during which the Census Bureau hires temporary employees for each decennial census.
The Plaintiffs' claims therefore are ripe for review, and the Census Bureau's motion to dismiss their claims for injunctive and declaratory relief must be denied.
703*703 B. Plaintiffs' Motion to Amend the Complaint
The Court next turns to the Plaintiffs' motion for leave to amend their complaint. Before this case was assigned to me, Judge Berman "So Ordered" a Case Management Plan that required the Original Plaintiffs to amend their complaint within four months of April 13, 2010, i.e., by August 13 2010. Thereafter, in Johnson I, the Court dismissed the individual claims of Rickett-Samuels and Anderson, as well as the Plaintiffs' class claims. In their "revised" Second Amended Complaint (see ECF No. 90 Ex. A), the Plaintiffs seek to add the claims of the New Plaintiffs and reassert the claims of the Dismissed Plaintiffs. The Plaintiffs further seek to amend the class claims in light of the Supreme Court's recent decision in Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).
1. Standard to Amend
Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its complaint once as a matter of course before a responsive pleading has been served; thereafter, it may do so "only with ... the court's leave," which should "freely" be given "when

justice so requires." Fed.R.Civ.P. 15(a)(2). Courts therefore usually look favorably on requests to amend under Rule 15(a). See Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). An amendment to add parties to a suit is further subject to Rule 21 of the Federal Rules of Civil Procedure, which permits their addition by order of the court "at any time, on just terms." See Momentum Luggage & Leisure Bags v. Jansport, Inc., No. 00 Civ. 7909(DLC), 2001 WL 58000, at *1-2 (S.D.N.Y. Jan. 23, 2001). Here, because an answer has been filed, the showing necessary under Rule 21 is the same as that required under Rule 15(a). Rissman v. City of N.Y., No. 01 Civ. 6284(SHS)(DF), 2001 WL 1398655, at *1 (S.D.N.Y. Nov. 9, 2001).
The Plaintiffs' right to amend their complaint is also subject to Rule 16 of the Federal Rules of Civil Procedure because a pretrial scheduling order restricting their right to do so previously has been entered. Parker v. Columbia Pictures Indus., 204 F.3d 326, 339-41 (2d Cir.2000); Rent-A-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 103 (S.D.N.Y.2003). Under Rule 16(b)(4), such a "schedule may be modified only for good cause and with the judge's consent." Fed. R.Civ.P. 16(b)(4) (emphasis added). Whether "good cause" exists turns primarily on the "diligence" of the moving party in seeking to meet the deadline in the scheduling order. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir.2007) (citing Parker, 204 F.3d at 339-40). The court also may consider whether the amendment will prejudice the non-moving party. Id. The absence of prejudice to the non-moving party, however, is not alone sufficient to satisfy the good cause requirement of Rule 16(b)(4). Ratcliffe v. Pradera Realty Co., No. 05 Civ. 10272(JFK), 2007 WL 3084977, at *1 (S.D.N.Y. Oct. 19, 2007).
Finally, the Supreme Court has interpreted Rule 15 to bar an amendment if the amendment would be futile. See Hemphill v. Schott, 141 F.3d 412, 420 (2d Cir.1998) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). An amended claim is futile if it would not survive a motion to dismiss. See Ricciuti, 941 F.2d at 123,
2. Venue
The Census Bureau claims that the Plaintiffs' motion to amend the complaint should be denied, in part, because venue in this District is improper as to the Dismissed Plaintiffs and the New Plaintiffs. 704*704 As set forth below, however, the Census Bureau has waived improper venue as a defense.
a. Applicable Law
Although venue generally is governed by 28 U.S.C. § 1391, Title VII contains its own venue provision, 42 U.S.C. § 2000e-5(f)(3), which permits suit to be brought in any of three locations. That statute provides that:
[A Title VII] action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice....

Id. A defendant nevertheless may waive improper venue as a defense because venue is not jurisdictional. See Neirbo v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 84 L.Ed. 167 (1939) (objection to venue "may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct"). Pursuant to Rule 12(h)(1) of the Federal Rules of Civil Procedure, a defendant waives any challenge to venue if it fails to raise that objection in a pre-answer motion or in its first responsive pleading. See Tri-State Emp't Servs., Inc. v. Mountbatten Sur. Co., 295 F.3d 256, 261 n. 2 (2d Cir.2002)(defendant who "fail[s] to raise [a] venue challenge in a pre-answer motion or responsive pleading ... is deemed to have waived any objection to venue").
An exception to Rule 12(h) allows a defendant to make an otherwise untimely objection to venue if that objection was not available at the time of the filing of the pre-answer motion or responsive pleading. See Fed.R.Civ.P. 12(g)(2). However, "[t]he filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading," 5C Charles Alan Wright, Federal Practice & Procedure § 1388, at 491 (4th ed.2009).
b. Application of Law to Facts
The Census Bureau did not raise improper venue as a defense in its July 2010 motion to dismiss the Original Complaint, (see ECF Nos. 29-30), or its September 2010 motion to dismiss the First Amended Complaint (see ECF Nos. 35, 37). Instead, the first time that the Census Bureau raised improper venue as an affirmative defense was in its answer to the First Amended Complaint, filed on March 29, 2011 (see ECF No. 48); it raised that defense again in response to the Plaintiffs' present motion to amend (see ECF No. 67 ("Def.'s Opp'n")). The Census Bureau contends that its right to object to venue was not waived because it did not have the opportunity to object to venue as to the New Plaintiffs in its prior motions. The Census Bureau also argues that it has not waived improper venue as a defense to the claims of the Dismissed Plaintiffs because an amended complaint fully replaces a prior complaint.
Turning first to the Dismissed Plaintiffs, the Census Bureau clearly has waived improper venue as a defense because it failed to assert that defense in its September 2010 motion to dismiss the claims of Rickett-Samuels and Anderson. Rule 12(h) therefore precludes the Census Bureau from raising that defense now. The exception to Rule 12(h) discussed above is inapplicable because the Census Bureau had an opportunity to object to venue as to Rickett-Samuels and Anderson in its prior motion to dismiss, but failed to do so. Venue therefore is proper as to the Dismissed Plaintiffs.
705*705 The remaining issue is whether the Census Bureau has waived its improper venue defense as to the New Plaintiffs. The critical question with respect to this aspect of the Census Bureau's motion is whether a defendant waives improper venue as a defense to the claims of proposed additional plaintiffs if the defendant previously failed to assert the defense in a timely manner against similarly-situated plaintiffs already named in the case. Here, the Census Bureau plainly could have raised improper venue under the Title VII venue statute as a defense to Houser's claims in its July 2010 motion to dismiss the Original Complaint, but it failed to do so. (See ECF Nos. 29-30). Indeed, the Original Complaint set forth the geographic area in which Houser lived (see Compl. ¶ 29), and the

Census Bureau's hiring procedures required temporary employees to work in close geographic proximity to their residences.[4] (See Decl. of Viola Lewis Willis, dated June 28, 2011 (ECF No. 71), ¶¶ 10, 14), Furthermore, the Census Bureau clearly knew or should have known where Houser's "employment records ... [were] maintained and administered." See 42 U.S.C. § 2000e-5(f)(3). The Census Bureau similarly could have raised improper venue as a defense to the claims of Anderson, Gonzalez, Riesco, Daniels, or Rickett-Samuels in its September 2010 motion to dismiss the First Amended Complaint, but did not. (See ECF Nos. 35, 37).
Even though it failed to object to venue in its pre-answer motions, the Census Bureau contends that it has not waived its venue defense because the New Plaintiffs' claims "would drastically alter the scope and nature of the case by alleging class-wide claims related to entirely new geographic regions." (Def.'s Opp'n at 21). On this basis, the Census Bureau maintains that its failure to object to venue as to the Original Plaintiffs is irrelevant.
The New Plaintiffs' claims, however, do not "drastically alter" the scope of the lawsuit as the Census Bureau suggests. Instead, the New Plaintiffs allege class claims substantially similar to the ill-fated class action claims brought by the Original Plaintiffs. Indeed, from the time the Original Complaint was filed, the Census Bureau has been on notice that the Plaintiffs seek to bring a nationwide class action involving thousands of class members across the country. (SeeCompl. ¶ 9 (asserting class claims on behalf of all AfricanAmerican, Latino, and Native American applicants for temporary jobs with the 2010 census who received a 30-day Letter, were otherwise qualified for employment, and were not hired by the Census Bureau); FAC ¶ 33 (same); SAC ¶ 33 (same)). Furthermore, all three of the New Plaintiffs reside in close geographic proximity to one or more of the Original Plaintiffs,[5] These factors belie the Census Bureau's contention that it now should be permitted to assert an improper venue defense because the New Plaintiffs' claims would "drastically alter the scope" of this case.
The few decisions to have addressed this issue further support the Plaintiffs. In Lanehart v. Devine, 102 F.R.D. 592 (D.Md.1984), the court held that the government waived its right to object to venue as to subsequently-named plaintiffs because it previously had failed to raise improper venue as a defense to the claims of similarly-situated named plaintiffs. Id. at 706*706 593-95. The Census Bureau attempts to distinguish Lanehart on the ground that the Census Bureau had raised improper venue as a defense in its answer, while the government in Lanehart had not. This, however, is a red herring because Rule 12(h) makes clear that an objection to venue is waived if it is not raised in the defendant's pre-answer motion or its first responsive pleading. In this case, the Census Bureau filed two pre-answer motions that failed to raise improper venue as a defense before filing its answer. The fact that the Census Bureau objected to venue in its subsequentanswer therefore is irrelevant.
More recently, in Bell v. Lockheed Martin Corp., No. 08-6292 (RBK/AMD), 2011 WL 1467365 (D.N.J. Apr. 18, 2011), the defendant argued that it was entitled to raise venue with respect to each new plaintiff named in an amended complaint. The district judge resoundingly rejected that contention in a Title VII disparate impact case. Relying on Lanehart, the court explained, in part, that not allowing the defendant to raise an objection to venue at that stage of the case "further[ed] Rule 12(h)'s underlying purpose of

ensuring that threshold objections such as improper venue are not asserted piecemeal." Id. at *9.
The reasoning in Lanehart and Bell is persuasive. Rule 12(h) "requires that a defendant raise threshold objections such as venue as soon as they are `available.'" Bell, 2011 WL 1467365, at *8 (quoting Fed.R.Civ.P. 12(h)). The facts relevant to the defense of improper venue were known to the Census Bureau when it filed its motion to dismiss the Original Complaint and when it sought to dismiss the First Amended Complaint. Because the Census Bureau failed to raise improper venue as a defense in either of its pre-answer motions, Rule 12(h) prohibits it from reviving that objection with respect to subsequentlynamed plaintiffs situated similarly to the Original Plaintiffs. See id. Accordingly, the Census Bureau has waived improper venue as a defense to the New Plaintiffs' claims. For that reason, the defense is stricken from the Census Bureau's answer.
3. Transfer
The defendants also have moved to sever each Plaintiff's claims and to transfer them to their respective home districts, or, in the alternative, to transfer the case intact to the District of Maryland, where the Census Bureau keeps its employment records. (Def.'s Opp'n at 3640).
Under 28 U.S.C. § 1404, courts have considerable discretion in deciding such motions. The factors to be considered are: "[a] the convenience of witnesses; [b] the location of relevant documents and the relative ease of access to sources of proof; [c] the convenience of the parties; [d] the locus of the operative facts; [e] the availability of process to compel attendance of unwilling witnesses; [f] the relative means of the parties; [g] a forum's familiarity with the governing law; [h] the weight accorded to plaintiff's choice of forum; and [i] trial efficiency and the interests of justice, based upon the totality of the circumstances." Posven, C.A. v. Liberty Mut. Ins. Co., 303 F.Supp.2d 391, 404 (S.D.N.Y.2004),
The party moving for a Section 1404 transfer bears the heavy burden of showing that a plaintiff's choice of forum should be set aside. Friedland v. Holiday Inns. Inc.,No. 88 Civ. 7857(PKL), 1989 WL 101942, at *1 (S.D.N.Y. Aug. 30, 1989). Thus, a plaintiff's choice of forum should not be disturbed unless a defendant has made a clear and convincing showing that the balance of convenience weighs heavily in favor of the defendant Linzer v. EMI Blackwood Music, 904 F.Supp. 207, 216 (S.D.N.Y.1995). Furthermore, in most cases, the most significant factor to be 707*707considered by the court is the convenience of party and non-party witnesses. Id.
The Census Bureau contends that the claims in this case should be severed and transferred because "permitting this case to proceed as ... a vast nationwide class action ... would create an unmanageable and logistically impossible litigation, would prejudice and unduly burden the [Census Bureau], and would be contrary to judicial economy and feasible case administration." (Def.'s Opp'n at 39-40). The Census Bureau further notes that the operative facts in this case took place largely outside the Southern District of New York, suggesting that the Plaintiffs' home districts could more readily compel unwilling witnesses to testify and would prove more convenient for the Plaintiffs themselves.[6] (Id. at 37-38).

Although the Census Bureau's solicitude for the convenience of the Plaintiffs is impressive, even if the Court were to conclude that the Plaintiffs had engaged in forum shopping, that would not be a basis for granting the Census Bureau's transfer motion. See Cheeseman v. Carey, 485 F.Supp. 203, 215 (S.D.N.Y.). remanded on other grounds, 623 F.2d 1387 (2d Cir.1980). The other factors advanced by the Census Bureau as a basis for transferring the Plaintiffs' claims to their home districts also fall far short of demonstrating a clear and convincing reason why the Plaintiffs' chosen forum should be disturbed, given the "strong policy favoring the litigation of related claims in the same tribunal in order that pretrial discovery can be conducted more efficiently, duplicitous litigation can be avoided, thereby saving time and expense for both parties and witnesses, and inconsistent results can be avoided." Goggins v. Alliance Capital Mgmt., L.P., 279 F.Supp.2d 228, 234 (S.D.N.Y.2003) (quoting Wyndham Assocs. v. Bintliff, 398 F.2d 614, 618 (2d Cir.1968)).
The Census Bureau also has failed to demonstrate that this case should be transferred to the District of Maryland. The Census Bureau notes that relevant documents are located in Maryland (see Def.'s Opp'n at 37), but has failed to address the Plaintiffs' assertion that those documents are also available electronically. (See Decl. of Samuel R. Miller, Esq., dated Aug. 3, 2011 (ECF No. 85) ("Miller Decl."), ¶¶ 3-4). The Census Bureau therefore has failed to proffer clear and convincing evidence that this case should be transferred to the District of Maryland, particularly considering that this case has been litigated before this Court for more than one year.
Ultimately, the question of whether to transfer this case, or certain of the Plaintiffs' claims, is one that is remitted to the Court's broad discretion. See D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106 (2d Cir.2006). Exercising that discretion, the Court has determined that the Census Bureau's request to transfer this case pursuant to 28 U.S.C. § 1404 should be denied.
4. Dismissed Plaintiffs' Claims
The Census Bureau further asserts that the Plaintiffs' motion to amend should be denied as to the claims of the Dismissed Plaintiffs because neither Rickett-Samuels nor Anderson exhausted her administrative remedies. Specifically, the Census Bureau contends that Rickett-Samuels' proposed amended claims are futile because she failed to file a timely EEO complaint, and Anderson's proposed amended claims fail because she cannot "piggyback" on the claims of Rickett-Samuels or the 708*708 New Plaintiffs. For the reasons set forth below, the Plaintiffs' motion to amend the complaint is granted with respect to Rickett-Samuels' claims, but denied with respect to Anderson's claims.
a. Applicable Law
i. Exhaustion Requirements
To pursue a Title VII claim in federal court, a plaintiff ordinarily must first exhaust her administrative remedies. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,274 F.3d 683, 684-85 (2d Cir. 2001). In a Title VII suit against a federal agency, the first step in the exhaustion process requires the employee to initiate contact with an agency EEO counselor

"within 45 days of the date of the matter alleged to be discriminatory." See 29 C.F.R. § 1614.105(a)(1); see also id. § 1614.204(b) (applicant "who wishes to file a class complaint must seek counseling... in accordance with § 1614.105"). Because "[t]his timeliness requirement is not jurisdictional, ... the filing deadline is subject to waiver, estoppel, and equitable tolling." Bruce v. U.S. Dep't of Justice, 314 F.3d 71, 74 (2d Cir.2002). Furthermore, an "agency waives a timeliness objection by making an express finding that the complaint was timely or failing to appeal an EEOC determination of timeliness." Id.(citing Briones v. Runyon, 101 F.3d 287, 291 (2d Cir.1996)).
The additional steps required to exhaust a Title VII claim against a federal agency vary depending on whether the plaintiff is pursuing an individual or a class claim. After initiating contact with an agency EEO counselor, a Title VII plaintiff bringing an individual discrimination claim ordinarily need only file a timely complaint with, and obtain a right-tosue letter from, the agency's Equal Employment Opportunity Office ("EEOO"). See 29 C.F.R. §§ 1614.106, 1614.407; Alenski v. Potter, No. 03-CV-2179(SJF)(MLO), 2005 WL 1309043, at *7 (E.D.N.Y. May 18, 2005). To exhaust a claim asserted on behalf of a class, however, a Title VII plaintiff typically must do more. See Gulley v. Orr, 905 F.2d 1383, 1384 (10th Cir. 1990) (exhaustion procedures for class action claims against a federal agency are "markedly different than the administrative mechanism for addressing individual discrimination claims"). Specifically, pursuant to regulations first promulgated in 1977 ("Class Regulations"), an individual pursuing a class claim must file with the agency a class action complaint that contains allegations concerning numerosity, commonality, typicality, and adequacy of representation. Compare 29 C.F.R. § 1614.204(a)(2), with Fed.R.Civ.P. 23(a).[7]
Within 30 days after a class complaint is filed, the agency must forward the complaint to the EEOC, which may dismiss the complaint, or any portion thereof, on a number of grounds, including failure to meet the requirements of a class action complaint or lack of timeliness. 29 C.F.R. § 1614.204(d)(2). If the EEOC administrative judge accepts the complaint, the agency must notify class members of this development. Id. § 1614.204(e). Although the EEOC, rather than the agency, investigates the complaint, the Class Regulations provide an opportunity for reconciliation or a hearing if the dispute cannot be amicably resolved. Id. §§ 1614.204(g)(h). At the end of the process, a class action representative who remains dissatisfied with the outcome of the administrative proceedings has 90 days to file a federal lawsuit. Id. § 1614.407. In addition, if the agency fails to take final action with respect 709*709 to a complaint within 180 days after the date it was filed, the individual claimant or class action representative may file suit in federal court. Id. § 1614.407(b).
ii. Single Filing Rule
Notwithstanding these detailed requirements for exhaustion, courts have held that "Title VII's administrative prerequisites must be interpreted liberally to effectuate its purpose of eradicating employment discrimination." Cronas v. Willis Grp. Holdings Ltd., No. 06 Civ. 15295(GEL), 2007 WL 2739769, at *2 (S.D.N.Y. Sept. 17, 2007)(citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Love v. Pullman Co., 404 U.S. 522, 526-27, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)). Accordingly, "[f]airness, and not excessive technicality, must guide the consideration of Title VII actions." Id.

In an effort to "mitigate what might otherwise be the harsh consequences of the exhaustion requirement" in employment cases, the Second Circuit has adopted what is known as the "single filing" or "piggybacking" rule. As Judge Kaufman explained in Snell v. Suffolk County, 782 F.2d 1094 (2d Cir.1986), under that rule, when "two plaintiffs allege that they were similarly situated and received the same discriminatory treatment, the purposes of the exhaustion requirement are adequately served if one plaintiff has filed an EEOC complaint." Id. at 1101 (quoting De Medina v. Reinhardt, 686 F.2d 997, 1013 (D.C.Cir.1982)); see also id.at 1100 ("other non-filing plaintiffs may join in the action if their individual claims arise out of similar discriminatory treatment in the same time frame") (internal quotation marks and brackets omitted); Holowecki v. Fed. Express Corp., 440 F.3d 558, 564 (2d Cir.2006) (same). If the nonfiling and filing plaintiffs both complain of conduct in a work unit of "modest size," the "mere similarity of the[ir] grievances within the same general time frame suffices to permit the `single filing rule'" to be applied. Tolliver v. Xerox Corp., 918 F.2d 1052, 1058 (2d Cir.1990). The rationale for this relatively low threshold is that "[i]f it is impossible to reach a settlement with one discriminatee, [there would be no reason] to assume the next one would be successful." Id. (citation omitted).
In cases involving a substantial number of plaintiffs or a class, the Second Circuit has required an additional showing intended to ensure that both the employer and the EEOC are aware of what is at stake at the conciliation stage. Thus, to take advantage of the rule in such circumstances, a non-filing plaintiff must show that the filing plaintiff's complaint or charge provides "some indication that the grievance affects a group of individuals defined broadly enough to include those who seek to piggyback on the claim." Id. (emphasis added).
A statement that a grievance affects persons other than the plaintiff may suffice to enable a non-filing plaintiff to piggyback on the claim of a similarly-situated filing plaintiff. Such a statement is not sufficient, however, to comply with the Class Regulations. See Gulley, 905 F.2d at 1385 ("[T]he weight of authority addressing this issue has held that exhaustion of individual administrative remedies is insufficient to commence a class action in federal court; rather, one of the named plaintiffs must have exhausted class administrative remedies."). Accordingly, to rely on a complaint against a federal agency, class members must show that their representative or agent filed a timely class action complaint which, among other things:
(i) identifies the policy or practice adversely affecting the class; (ii) identifies the specific action or matter affecting the class agent; (iii) alleges the class is 710*710 so numerous that a consolidated complaint filed on behalf of all members would be impractical; (iv) alleges that there are questions of fact common to the class members; [and] (v) alleges that the claims of the class' agent are typical of the claims of the class' members.
Woodward, 731 F.Supp.2d at 1187 (citing 29 C.F.R. § 1614.204(a)(2)).
b. Application of Law to Facts
i. Rickett-Samuels

Rickett-Samuels filed a formal complaint with the Census Bureau EEOO in March 2010. (SAC ¶ 37). She amended her complaint to include class allegations on May 13, 2010. (Id.). The Census Bureau subsequently held that complaint in abeyance pending the outcome of the Census Bureau's first motion to dismiss in this case. See Johnson I, 2011 WL 1044151, at *10. In Johnson I, the Court dismissed Rickett-Samuels' claim on the grounds that (a) she could not piggyback onto Houser's claim because Rickett-Samuels had filed her own EEO complaint, and (b) no final action had been taken with regards to Rickett-Samuels' complaint, and 180 days had not yet passed from the time it was filed.[8] The Court also noted that Rickett-Samuels' claim was likely untimely even if 180 days had passed (because Rickett-Samuels filed her EEO complaint almost one year after the Census Bureau rejected her application), unless, like Houser, she lacked actual or constructive notice of the 45-day filing requirement. Id. at *10 n. 6.
Rickett-Samuels reasserts her claims in the Second Amended Complaint, contending that she has now exhausted her administrative remedies because 180 days have elapsed since she filed her amended EEO complaint, and because she did not have actual or constructive notice of the 45-day filing requirement. The Census Bureau contends that her proposed amended claims are futile because she did not contact an EEO counselor within 45 days and waived the right to reassert her claims by not contesting the Census Bureau's first motion to dismiss.
Turning first to the Census Bureau's waiver argument, Rickett-Samuels clearly did not waive her right to reassert her claims. The Census Bureau filed its first motion to dismiss on September 10, 2011, but Rickett-Samuels was not authorized to sue in federal court until November 9, 2011 (180 days after she filed her amended complaint). See 29 C.F.R. § 1614.106. Therefore, the Census Bureau's contention that "Rickett-Samuels should not be permitted to amend her complaint now based on facts that were known long ago" is meritless. (Def.'s Opp'n at 10) (emphasis added). To the contrary, Rickett-Samuels was not authorized to sue until well after the Plaintiffs filed their Original Complaint, and approximately two months after the Census Bureau filed its first motion to dismiss.
Whether Rickett-Samuels should be permitted to amend her complaint in light of her failure to contact an EEO counselor within 45 days is a closer question. 711*711 In that regard, 29 C.F.R. § 1614.105(a) requires that:
(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must ... (1) ... initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory (2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them....
Id. (emphasis added).
Rickett-Samuels argues that the 45-day filing requirement should be tolled in her case because she had neither actual nor constructive notice of its existence. As support for this contention, Rickett-Samuels relies primarily on the EEOC decision relating to Houser's

claim, which found that Houser "[could] not be expected to have read [the EEO poster advising applicants of the 45-day time limit], thereby having [] constructive notice, while she was at the testing site for only a brief time, i.e., about an hour...." (Miller Decl. Ex. 4). Rickett-Samuels contends that the facts surrounding her claim are indistinguishable from those relating to Houser, Like Houser, Rickett-Samuels spent less than two hours at a testing location, and she denies having seen a poster advising applicants of the 45-day limit for contacting an EEO counselor. (See SAC ¶ 76).
In Johnson v. Runyon, 47 F.3d 911 (7th Cir.1995), a Seventh Circuit panel expressed "serious doubts as to whether posting a notice ... in a location that an applicant visits on just one occasion could ever be `reasonably geared' to give that applicant constructive notice of the [45-day] time limit[]." Id. at 919 (emphasis added). According to that court, the analysis of whether postings are "reasonably geared" to put applicants on notice of EEO time limits "must take into account the fact that applicants, by definition, have not yet been subjected to the possibility of employment discrimination. When they enter a facility to secure an employment application, the last thing on their minds is what recourse, if any, they might have if the [agency] illegally discriminates in hiring; their immediate concern is with where and how to obtain an application and how to fill it out properly." Id.
The reasoning of Johnson and the EEOC decision concerning Houser is persuasive. Unlike an employee, an applicant for a job — particularly a temporary job — is unlikely to pay careful attention to employment discrimination-related postings, especially when the applicant is filling out an application and taking a test at a location other than the one where she will work if hired.[9]
Furthermore, the Census Bureau has not produced the poster allegedly displayed at the Stamford, Connecticut Government Center, where Rickett-Samuels took her test. In a sworn declaration, a 712*712 former Recruiting Assistant in the Stamford Local Census Office states that he "prominently displayed" an EEO poster "approximately 11 inches wide and 17 inches tall [that] was brightly colored and easily visible," and that "[t]he poster stated, in large font, that discrimination was illegal and gave the applicants information on discrimination ... [and] stated that individuals had to contact the EEO office within 45 calendar days of the alleged discrimination." (See Decl. of Daniel Pennaccia, dated Apr. 22, 2011 (ECF No. 69), ¶¶ 1, 5-6). Without having been afforded the opportunity to review the actual poster, however, the Court cannot say that it necessarily was sufficient to put RickettSamuels on notice of the 45-day time limit to contact the Census Bureau EEOO.
Rickett-Samuels' proposed amended claims therefore are not futile, and the Plaintiffs' motion to amend the complaint is granted as to Rickett-Samuels' claims.
ii. Anderson
Anderson seeks to reassert her dismissed claims on the theory that she should now be permitted to piggyback on the claims of Rickett-Samuels or the New Plaintiffs. Anderson received a rejection letter from the Census Bureau dated February 2, 2010. She consequently only had until March 20, 2010, to seek EEO counseling in compliance with the 45-day filing requirement. In the alternative, if Anderson failed to file an EEO complaint of her own, she could piggyback on a previously-filed claim that put the Census Bureau on

notice that the 30-day Letter and Adjudication Criteria discriminated against Native Americans. However, none of the EEO complaints referenced in the Second Amended Complaint that assert claims on behalf of Native Americans was filed before March 20, 2010. Moreover, Rickett-Samuels first mentioned discrimination against Native Americans in her amended EEO complaint filed on May 13, 2010, (see SAC ¶ 37), and none of the New Plaintiffs filed their complaints before April 2010. (See id. ¶¶ 38-40). Anderson therefore cannot piggyback on the claims of Rickett-Samuels or the New Plaintiffs. It follows that the Plaintiffs' motion to amend the complaint to reassert Anderson's claims must be denied as futile.
5. Class Certification
The Census Bureau further contends that the Plaintiffs' motion for leave to file a revised Second Amended Complaint should be denied because the Plaintiffs cannot successfully certify this case as a class action under Rule 23 of the Federal Rules of Civil Procedure. The Plaintiffs' rejoinder proceeds on the premise that the Census Bureau has challenged "the procedure or scope of whatever class ultimately becomes certified," but has not "attack[ed] the viability of the class in any meaningful way." (EFC No. 84 (Pls.' Reply) at 15 (emphasis in original)). For this reason, the Plaintiffs urge the Court to refrain from addressing the sufficiency of the class claims until the Plaintiffs file a post-discovery motion for class certification. In the alternative, the Plaintiffs ask for leave to submit supplemental briefing to address the issue in full. (Id. at 15 n. 14).
In light of the Court's decision to deny the Census Bureau's motion to dismiss the Plaintiffs' claims for injunctive and declaratory relief, see supra Part II. A, the Plaintiffs will be allowed to amend their complaint to assert class claims on behalf of Rickett-Samuels and the New Plaintiffs. While the Plaintiffs may face an uphill battle in their attempt to certify a nationwide class of individuals seeking monetary damages, see Wal-Mart, 131 S.Ct. at 2557-61, when a defendant's opposition to a motion to amend involves not-yet-certified classes, it is appropriate to allow the amendment and address the defendant's 713*713 arguments against certification "in the context of motions to certify the proposed classes." Presser v. Key Food Stores Co-op. Inc., 218 F.R.D. 53, 57 (E.D.N.Y.2003) (quoting Acad. of Ambulatory Foot Surgery v. Am. Podiatry Ass'n, 516 F.Supp. 378, 383 (S.D.N.Y.1981)).
Finally, the Court will allow the Plaintiffs to amend their complaint to allege class claims under Rule 23(b)(3) in light of the Supreme Court's decision in Wal-Mart,which was issued after the Plaintiffs had filed their motion for leave to amend, but before the Census Bureau filed its opposition. In Wal-Mart, the Court held that claims for individualized monetary relief may not be certified under Rule 23(b)(2) if the monetary relief sought is not incidental to injunctive or declaratory relief. 131 S.Ct. at 2557. Instead, "individualized monetary claims belong in Rule 23(b)(3)." Id. at 2558. Believing that the pre-Wal-Mart regime permitted class claims for individualized monetary claims under Rule 23(b)(2), the Plaintiffs' failed to assert claims under 23(b)(3) in the Original Complaint or First Amended Complaint. The interest of justice is best served by allowing the Plaintiffs to amend their complaint to assert such claims in light of this recent clarification of the law regarding class actions. By allowing this amendment, the Court is in no way suggesting that the Plaintiffs will ultimately be able to pursue those class claims. Rather, the Court is simply reserving decision as to that issue until a later stage of this case.

III. Conclusion
For the reasons set forth above, the Census Bureau's motion to dismiss the Plaintiffs' claims for injunctive and declaratory relief (ECF No. 61) is denied, and the Plaintiffs' motion for leave to amend (ECF No. 52) is denied with respect to Anderson's claims, and granted in all other respects. Consequently, Plaintiffs Johnson, Houser, Gonzalez, Riesco, and Daniels may assert individual claims, and Plaintiffs Rickett-Samuels, Scott, Desphy, and Kargbo may assert both individual and class claims.
SO ORDERED.
[1] On January 4, 2012, Plaintiffs' counsel notified the Court of Johnson's death. (See ECF No. 94). The Plaintiffs further indicated that they intend to move to substitute the executor of Johnson's estate as Johnson's legal representative in this action within the ninety-day time period prescribed by Rule 25(a)(1) of the Federal Rules of Civil Procedure. (Id.). By letter dated January 18, 2012, the Census Bureau claimed that Johnson's death had an "immediate effect on plaintiffs' Motion to Amend, since [] Johnson's estate will not be able to pursue any injunctive claims on behalf of [] Johnson, even if any injunctive claims survive the [Census Bureau]'s pending Motion to Dismiss." (Letter from Ass't U.S. Att'y Daniel P. Filor to the Court, dated January 18, 2012, at 1). The Census Bureau further noted that Johnson's estate likely cannot serve as a class representative. (Id. (citing First Interstate Bank of Nev. v. Chapman & Cutler, 837 F.2d 775, 781 (7th Cir.1988), and In re FleetBoston Fin. Corp. Secs. Litig.,253 F.R.D. 315, 325-26 (D.N.J.2008))). Assuming that both of the Census Bureau's assertions are correct, neither affects the outcome of the motions currently before the Court, because the remaining Original Plaintiffs are situated similarly to Johnson with respect to their claims for injunctive relief and the viability of their class claims. The outcome of the pending motions consequently would be the same even if Johnson were not a Plaintiff.
[2] There is at least one other action pending in this District that challenges the Adjudication Criteria. See Robinson v. Locke, No. 11 Civ. 2480(PAC)(DF). The plaintiff in that action, originally proceeding pro se, accepted a temporary position as a Census Bureau enumerator, but was arrested between the time he accepted the job and when he reported for training. Although the charges later were dropped, the Census Bureau rescinded its offer. On February 1, 2012, Magistrate Judge Freeman recommended that Secretary Locke's motion to dismiss that action be denied, despite the plaintiff's conceded failure to allege racial discrimination in his original administrative charge. (Id. ECF No. 21). One of the bases of that recommendation was that the pendency of this action confirmed that "both the [Census] Bureau and the [Equal Employment Opportunity Commission (`EEOC')] could have been expected to consider and investigate the question of whether [the plaintiff] may have been adversely impacted by the [Census] Bureau's screening policy because of his race." (Id. at 17). After the Report and Recommendation was issued, counsel for the Plaintiffs in this action entered a notice of appearance on behalf of the plaintiff in Robinson. (Id. ECF Nos. 22-25).
[3] The Plaintiffs also contend that the Census Bureau applies unlawful background screening policies when hiring workers for temporary non-decennial positions, and that hiring for those positions is continuous. (See ECF No. 78 (Pls.' Opp'n) at 6-7). In the absence of any allegations that the Plaintiffs have applied for such positions and that the 30-day Letter and Adjudication Criteria were used to screen applicants for those positions, the Court will not consider the hiring efforts in connection with these non-decennial positions in its analysis of standing and mootness.
[4] Houser and Johnson were the only two named plaintiffs in the Original Complaint, which recited that Houser lived in Philadelphia and Johnson lived in New York City. (See Compl. ¶¶ 25, 29).
[5] Scott, Desphy and Original Plaintiff Houser all live in Philadelphia. Kargbo and Original Plaintiff Riesco live in Massachusetts.
[6] Johnson is the only Plaintiff who applied for a census position in the Southern District of New York, and, as discussed supra in note 1, following his death the role that his executor may play in this case is unclear.
[7] "There is no regulatory scheme governing the exhaustion of class complaints in private-sectorcases." Woodward v. Salazar, 731 F.Supp.2d 1178, 1189 n. 9 (D.N.M.2010) (emphasis added).

[8] 29 C.F.R. § 1614.106(d) provides that "[a] complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint." When a complainant files an amended complaint, "the agency shall complete its investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint...." Id. § 1614.106(e)(2). RickettSamuels therefore was not authorized to file a federal lawsuit until November 9, 2010, 180 days after her amended complaint was filed.
[9] The cases cited by the Census Bureau all consider whether agency employees, rather than applicants, were on notice of the 45-day requirement, and thus are inapposite. See, e.g., Rosario v. Potter, No. 07 Civ. 5891(SCR)(GAY), 2009 WL 3049585, at *7 (S.D.N.Y. Sept. 23, 2009) (EEO posters put employee on constructive notice of 45-day filing requirement, where poster was displayed at the plaintiff's workplace where she worked for over six years); Marinelli v. Chao, 222 F.Supp.2d 402, 411-12 (S.D.N.Y.2002) (employee had constructive notice of 45-day filing requirement because plaintiff worked for defendant for several years, defendant displayed EEO posters in the workplace and distributed handbooks and brochures with EEO information, and the collective bargaining agreement covering plaintiff's job title referenced EEO services).

 
 Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 1 of 59
CLOSED,ECF,MAGCONSENT
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10−cv−03105−FM

Gonzalez et al v. Pritzker

Date Filed: 04/13/2010

Assigned to: Magistrate Judge Frank Maas

Date Terminated: 09/20/2016

Cause: 42:2000e−2e Job Discrimination (Unlawful Employment Jury Demand: None

Practices)

Nature of Suit: 442 Civil Rights: Jobs

Jurisdiction: U.S. Government Defendant

Plaintiff

Eugene Johnson on behalf of themselves and all others similarly situated TERMINATED: 05/11/2012

represented by Adam T Klein Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 212 245−1000 Fax: 212 977−4005 Email: atk@outtengolden.com LEAD ATTORNEY

Justin Mitchell Swartz Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212) 245−1000 Fax: (646)−509−2060 Email: jms@outtengolden.com LEAD ATTORNEY

Lewis M. Steel Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: ls@outtengolden.com LEAD ATTORNEY

Melissa E. Pierre−Louis Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212) 245−1000 x2495 Fax: (646)−509−2060 Email: mpierrelouis@outtengolden.com LEAD ATTORNEY

Ossai Miazad Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: omiazad@outtengolden.com LEAD ATTORNEY

Samuel Rand Miller Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (212)−977−4005

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 2 of 59
Email: smiller@outtengolden.com LEAD ATTORNEY
Anjana Samant Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212) 614−6445 Fax: (212) 614−6499 Email: asamant@ccrjustice.org TERMINATED: 07/13/2012
Audrey Jordan Wiggins Lawyers' Committee for Civil Rights Under Law 1401 New York Ave., N.W.,Suite 400 Washington, DC 20005 (202) 662−8600 Fax: (202) 662−8600 Email: awiggins@lawyerscommittee.org PRO HAC VICE
Darius Charney Lansner &Kubitschek 666 Broadway 7th floor New York, NY 10012 Email: DCharney@ccrjustice.org
Jackson Chin Puerto Rican Legal Defense and Education Fund, Inc 99 Hudson Street 14th Floor New York, NY 10013 (212)−739−7572 Fax: (212)−431−4276 Email: jchin@latinojustice.org
Jane Dolkart Lawyer's Committee for Civil Rights under Law 1401 New York Avenue NW Ste 400 Washington, DC 20005 202−662−8391 Fax: 202−783−0857 Email: jdolkart@lawyerscommittee.org PRO HAC VICE
Judith Melissa Whiting The Legal Action Center 225 Varick Street New York, NY 10014 (212) 614−5323 Fax: (212) 614−5323 Email: jwhiting@cssny.org
Michael T Kirkpatrick Public Citizen Litigation Group 1600 20th Street Nw Washington, DC 20009 (202)−588−1000 Fax: (202)−588−7795 Email: mkirkpatrick@citizen.org PRO HAC VICE

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 3 of 59

Paul Francis Keefe Community Service Society 105 E. 22nd St., 8th Floor New York, NY 10010 (212)−614−5339 Fax: (212)−260−6218 Email: pkeefe@cssny.org

Rachel Megan Bien Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646) 509−2060 Email: rmb@outtengolden.com

Ray P. McClain Lawyers Committee For Civil Rights Under Law 1401 New York Avenue, NWSuite 400 Washington, DC 20005 (202) 662−8600 Fax: (202) 783−0857 PRO HAC VICE

Richard F. Bellman Anti−Discrimination Center of Metro New York, Inc 99 Hudson Street 14th Floor New york, NY 10013 Email: rbellman@latinojustice.org

Robert T. Coulter Indian Legal Resource Center 602 North Ewing Street Helena, MT 59601 (406)−449−2006 Fax: (406)−449−2031 PRO HAC VICE

Sarah Crawford Lawyer's Committee for Civil Rights Under Law 1401 New York Ave, NW Washington, DC 20005 202−662−8600 Fax: 202−783−0857 PRO HAC VICE

Sharon Dietrich Community Legal Services, Inc 1424 Chestnut Street Philadelphia, PA 19102 215−981−3700 Fax: 215−981−3700 PRO HAC VICE

Plaintiff
Evelyn Houser on behalf of themselves and all others similarly situated TERMINATED: 01/26/2016

represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 4 of 59
Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Christine Trzinski Outten &Golden, LLP 3 Park Avenue New York, NY 10016 (212)−245−1000 Fax: (212)−977−4005 Email: atrzinski@outtengolden.com TERMINATED: 08/25/2014
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Deirdre Anne Aaron Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: daaron@outtengolden.com ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 5 of 59

Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED

Julie Alyssa Murray Public Citizen Litigation Group 1600 20th Street, N.W. Washington, DC 20009 (202) 588−7733 Fax: (202) 588−7795 Email: jmurray@citizen.org TERMINATED: 12/08/2015 PRO HAC VICE

Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Francis Keefe (See above for address) ATTORNEY TO BE NOTICED

Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED

Ray P. McClain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED

Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sally Jasmine Abrahamson Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646) 509−2060 Email: sabrahamson@outtengolden.com PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sharon Dietrich (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Precious Daniels

represented by Adam T Klein (See above for address)

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 6 of 59
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Christine Trzinski (See above for address) TERMINATED: 08/25/2014
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Deirdre Anne Aaron (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED
Julie Alyssa Murray (See above for address) TERMINATED: 12/08/2015

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 7 of 59

PRO HAC VICE

Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Francis Keefe (See above for address) ATTORNEY TO BE NOTICED

Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED

Ray P. McClain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED

Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sally Jasmine Abrahamson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sharon Dietrich (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Sandra Anderson TERMINATED: 03/15/2011

represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 8 of 59
Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED
Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul Francis Keefe (See above for address) ATTORNEY TO BE NOTICED
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED
Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED
Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sharon Dietrich

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 9 of 59

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Ignacio Riesco TERMINATED: 07/01/2014

represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Christine Trzinski (See above for address) TERMINATED: 08/25/2014

Anjana Samant (See above for address) TERMINATED: 07/13/2012

Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Darius Charney (See above for address) ATTORNEY TO BE NOTICED

Jackson Chin (See above for address) ATTORNEY TO BE NOTICED

Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 10 of 59

Plaintiff Felicia Rickett−Samuels

Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul Francis Keefe (See above for address) ATTORNEY TO BE NOTICED
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED
Ray P. McClain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED
Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sally Jasmine Abrahamson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sharon Dietrich (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 11 of 59
Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Christine Trzinski (See above for address) TERMINATED: 08/25/2014
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Deirdre Anne Aaron (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED
Julie Alyssa Murray (See above for address) TERMINATED: 12/08/2015 PRO HAC VICE
Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul Francis Keefe (See above for address) ATTORNEY TO BE NOTICED
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED
Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 12 of 59

Plaintiff Anthony Gonzalez

Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sharon Dietrich (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Christine Trzinski (See above for address) TERMINATED: 08/25/2014
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 13 of 59

Jackson Chin (See above for address) ATTORNEY TO BE NOTICED

Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED

Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Francis Keefe (See above for address) ATTORNEY TO BE NOTICED

Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED

Ray P. McClain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED

Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sally Jasmine Abrahamson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sharon Dietrich (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Scotty Desphy on behalf of themselves and all others similarly situated

represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz (See above for address) LEAD ATTORNEY

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 14 of 59
ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Rand Miller Outten &Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (212)−245−1000 Fax: (212)−977−4005 Email: smiller@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Christine Trzinski (See above for address) TERMINATED: 08/25/2014
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Deirdre Anne Aaron (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED
Julie Alyssa Murray (See above for address) TERMINATED: 12/08/2015 PRO HAC VICE

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 15 of 59

Plaintiff
Chynell Scott on behalf of themselves and all others similarly situated

Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul Francis Keefe (See above for address) ATTORNEY TO BE NOTICED
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED
Ray P. McClain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED
Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sally Jasmine Abrahamson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sharon Dietrich (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 16 of 59
Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Christine Trzinski (See above for address) TERMINATED: 08/25/2014
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Deirdre Anne Aaron (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED
Julie Alyssa Murray (See above for address) TERMINATED: 12/08/2015 PRO HAC VICE
Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED
Ray P. McClain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard F. Bellman (See above for address)

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 17 of 59

ATTORNEY TO BE NOTICED

Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sally Jasmine Abrahamson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sharon Dietrich (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Vivian Kargbo on behalf of themselves and all others similarly situated TERMINATED: 07/01/2014

represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis M. Steel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa E. Pierre−Louis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Rand Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara Marie La Morte U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2746 Fax: (212) 637−2730 Email: tara.lamorte2@usdoj.gov LEAD ATTORNEY

Amber Christine Trzinski

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(See above for address) TERMINATED: 08/25/2014
Anjana Samant (See above for address) TERMINATED: 07/13/2012
Audrey Jordan Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jane Dolkart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judith Melissa Whiting (See above for address) ATTORNEY TO BE NOTICED
Michael T Kirkpatrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED
Ray P. McClain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard F. Bellman (See above for address) ATTORNEY TO BE NOTICED
Robert T. Coulter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sally Jasmine Abrahamson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Crawford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sharon Dietrich (See above for address) PRO HAC VICE

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 19 of 59
ATTORNEY TO BE NOTICED
Plaintiff Cephus Houser as the Trustee for the Trust Agreement of EVELYN HOUSER, individually

V. Defendant Gary Locke Secretary, United States Department of Commerce TERMINATED: 03/30/2012
Defendant Secretary Penny Pritzker United States Department of Commerce

represented by Allison D Penn U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 2126372200 Fax: 2126372786 Email: Allison.d.Penn@usdoj.gov LEAD ATTORNEY
Natalie Nancy Kuehler U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2741 Fax: (212) 637−2750 Email: natalie.kuehler@usdoj.gov LEAD ATTORNEY
Tara Marie La Morte (See above for address) LEAD ATTORNEY
Daniel Post Filor U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2726 Fax: (212) 637−2717 Email: daniel.filor@usdoj.gov
represented by Louis Anthony Pellegrino U.S. Attorney Office SDNY 86 Chambers Street New York, NY 10007 (212) 637−2689 Fax: (212) 637−2686 Email: louis.pellegrino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Nancy Kuehler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Marie La Morte (See above for address) LEAD ATTORNEY

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 20 of 59
ATTORNEY TO BE NOTICED
Daniel Post Filor (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Tulis United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212)−637−2725 Fax: (212)−637−2702 Email: elizabeth.tulis@usdoj.gov ATTORNEY TO BE NOTICED
Tomoko Onozawa U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2721 Fax: (212) 637− 2686 Email: tomoko.onozawa@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 04/13/2010 04/13/2010 04/13/2010 04/13/2010 04/16/2010 04/22/2010
04/22/2010
04/26/2010

# Docket Text
1 COMPLAINT against Gary Locke. (Filing Fee $ 350.00, Receipt Number 899943)Document filed by Eugene Johnson, Evelyn Houser.(mro) (ama). (Entered: 04/13/2010)
Magistrate Judge Frank Maas is so designated. (mro) (Entered: 04/13/2010)
Case Designated ECF. (mro) (Entered: 04/13/2010)
SUMMONS ISSUED as to Gary Locke, U.S. Attorney and U.S. Attorney General. (mro) (Entered: 04/13/2010)
2 NOTICE OF APPEARANCE by Rachel Megan Bien on behalf of Eugene Johnson, Evelyn Houser (Bien, Rachel) (Entered: 04/16/2010)
3 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − MOTION for Conference regarding preliminary injuction and expediated discovery. Document filed by Eugene Johnson, Evelyn Houser.(Miller, Samuel) Modified on 4/23/2010 (db). (Entered: 04/22/2010)
4 ENDORSED LETTER addressed to Judge Richard M. Berman from Samuel R. Miller dated 4/22/10 re: counsel to plaintiffs request a pre−motion conference to discuss and set an expedited briefing schedule for a motion seeking a preliminary injunction and limited discovery. ENDORSEMENT: We can discuss on 4/26. Parties to negotiate in good faith towards settlement prior to 4/26 conference. (Signed by Judge Richard M. Berman on 4/22/10) (djc) (Entered: 04/23/2010)
5 CASE MANAGEMENT PLAN: Plaintiff will not join any additional parties. Defendant reserves the right to join additional parties within one month of the execution of this Plan. Plaintiffs will amend the pleadings within four months from the date of filing the initial Complaint on April 13, 2010. Defendant reserves the right to oppose any motion to amend the Complaint after it has filed its answer. The parties agree to complete fact discovery (not including experts) within six months of the execution of this Plan. Plaintiffs do not consent to proceed before a Magistrate Judge for all purposes. Defendant does consent to proceed before a Magistrate Judge for all purposes. Motions due by 5/6/2010; 5/17/2010; 5/21/2010, Page limits. Oral argument: TBD. ENDORSEMENT: Refer Pre−trial issues to Magistrate Judge Maas. Parties to work on settlement ASAP. SO ORDERED. (Signed by Judge Richard M. Berman on 4/26/2010) (tve) Modified on 4/26/2010

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04/26/2010
04/26/2010 04/26/2010 04/29/2010 04/30/2010 04/30/2010
04/30/2010 05/03/2010 05/03/2010 05/03/2010
05/07/2010 05/11/2010 05/13/2010 05/13/2010

(tve). (Entered: 04/26/2010)
6 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Frank Maas. (Signed by Judge Richard M. Berman on 4/26/2010) (tve) (Entered: 04/26/2010)
7 NOTICE OF APPEARANCE by Allison D Penn on behalf of Gary Locke (Penn, Allison) (Entered: 04/26/2010)
Minute Entry for proceedings held before Judge Richard M. Berman: Status Conference held on 4/26/2010, Motions due by 5/6/2010. Responses due by 5/17/2010, Replies due by 5/21/2010. Oral argument requested by plaintiff. Referral to Magistrate Judge Maas. (tro) (Entered: 04/30/2010)
8 MOTION for Mike Kirkpatrick to Appear Pro Hac Vice. Document filed by Eugene Johnson, Evelyn Houser.(mro) (Entered: 04/30/2010)
CASHIERS OFFICE REMARK on 8 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 04/29/2010, Receipt Number 902236. (jd) (Entered: 04/30/2010)
10 ORDER. It is hereby ORDERED that: 1. By Monday, May 3, 2010, the Defendant is directed to produce, for attorneys' eyes only, the Census Bureau's adjudicative criteria for hiring and its criteria for determining which applicants receive the 30−day letters. 2. By Tuesday May 4, 2010, the Plaintiffs may take a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6), for a maximum of four hours, concerning the adjudicative criteria, the criteria for sending 30−day letters, and the current status of hiring for the 2010 census. 3. By May 11, 2010, the Defendant may depose the named plaintiffs and any experts upon whom the Plaintiffs rely in their motion for a preliminary injunction. 4. The parties shall submit courtesy copies to my Chambers of the memoranda of law submitted in connection with the motion for a preliminary injunction. (Deposition due by 5/11/2010.) (Signed by Magistrate Judge Frank Maas on 4/30/10) Copies Mailed By Chambers.(rjm) (Entered: 05/03/2010)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 4/30/2010. (mro) (Entered: 05/04/2010)
9 TRANSCRIPT of proceedings held on 4/26/2010 before Judge Richard M. Berman. (mbe) (Entered: 05/03/2010)
11 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION. ORDER granting 8 Motion for Mike Kirkpatrick to Appear Pro Hac Vice for plaintiffs. (Signed by Judge Richard M. Berman on 5/3/10) (db) (Entered: 05/03/2010)
12 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Allison D. Penn dated 5/3/2010 re: The parties respectfully submit this letter to request brief adjournments to the dates set forth in your Honor's Order dated 4/30/2010 as further set forth in this letter. ENDORSEMENT: The revised schedule set forth above is adopted. Additionally, counsel are directed to send copies of any future letters impacting the schedule for the PI motion to Judge Berman. (Expert Depositions due by 5/18/2010. Motions due by 5/12/2010. Responses due by 5/24/2010. Replies due by 5/28/2010.) (Signed by Magistrate Judge Frank Maas on 5/3/2010) (tro) Modified on 5/6/2010 (tro). (Entered: 05/04/2010)
13 MOTION for Robert T. Coulter to Appear Pro Hac Vice. Document filed by Eugene Johnson, Evelyn Houser.(mro) (Entered: 05/11/2010)
16 MOTION for Sharon Dietrich to Appear Pro Hac Vice. Document filed by Eugene Johnson, Evelyn Houser.(mro) (Entered: 05/13/2010)
14 ORDER granting 13 Motion for Robert T. Coutler to Appear Pro Hac Vice. (Signed by Judge Richard M. Berman on 5/12/2010) (js) (Entered: 05/13/2010)
15 ENDORSED LETTER: addressed to Judge Richrd M. Berman from Samuel R. Miller dated 5/12/2010 re: Plaintiffs have concluded that a successful preliminary

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05/17/2010 05/18/2010 05/18/2010 05/18/2010 05/18/2010 05/19/2010
05/19/2010 05/19/2010 05/20/2010 05/27/2010 05/27/2010
06/03/2010 06/09/2010
06/11/2010

injunction motion likely would not result in the hiring of an appreciable number of putative class members, and that the motion should not be brought. This decision is based entirely on factors of timing and practicability in the context of emergency relief, and is not based on any considerations regarding the merits of this case. In fact, other expedited discovery has revealed startling evidence of discriminatory policies and practices of nature and extent that Plaintiffs had not previously contemplated. Thus, we believe the most efficient course at this time is for plaintiffs to proceed post−haste with preparation of the case in−chief. ENDORSEMENT: Deadlines to file motion for preliminary are terminated, discovery to be completed (fact and expert) by 10/26/2010. Status conference on 10/26/10 @ 9:00 a.m. with principals. Work on settlement. So Ordered. (Signed by Judge Richard M. Berman on 5/12/2010) (js) (Entered: 05/13/2010)
17 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 16 Motion for Sharon Dietrich to Appear Pro Hac Vice for Plaintiffs. (Signed by Judge Richard M. Berman on 5/17/2010) (tro) (Entered: 05/18/2010)
18 NOTICE of Notice, Consent, and Reference of a Civil Action to a Magistrate Judge. Document filed by Gary Locke. (Penn, Allison) (Entered: 05/18/2010)
19 NOTICE OF APPEARANCE by Allison D Penn on behalf of Gary Locke (Penn, Allison) (Entered: 05/18/2010)
CASHIERS OFFICE REMARK on 13 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 05/07/2010, Receipt Number 902708. (jd) (Entered: 05/18/2010)
CASHIERS OFFICE REMARK on 16 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 05/11/2010, Receipt Number 903918. (jd) (Entered: 05/18/2010)
20 CONSENT TO JURISDICTION BY A US MAGISTRATE JUDGE by Gary Locke, Eugene Johnson, Evelyn Houser. (Case No Longer Referred to Magistrate Judge) CASE ASSIGNED to Magistrate Judge Frank Maas. (Signed by Judge Richard M. Berman on 5/19/10) (cd) (Entered: 05/20/2010)
22 MOTION for Sarah Crawford to Appear Pro Hac Vice. Document filed by Eugene Johnson, Evelyn Houser.(mro) (Entered: 05/21/2010)
23 MOTION for Audrey Wiggins to Appear Pro Hac Vice. Document filed by Eugene Johnson, Evelyn Houser.(mro) (Entered: 05/21/2010)
21 NOTICE OF APPEARANCE by Daniel Post Filor on behalf of Gary Locke (Filor, Daniel) (Entered: 05/20/2010)
24 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 23 Motion for Audrey Wiggins to Appear Pro Hac Vice on behalf of Plaintiffs. (Signed by Magistrate Judge Frank Maas on 5/27/10) (djc) (Entered: 05/28/2010)
25 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 22 Motion for Sarah Crawford to Appear Pro Hac Vice on behalf of Plaintiffs.(Signed by Magistrate Judge Frank Maas on 5/24/10) (djc) (Entered: 05/28/2010)
CASHIERS OFFICE REMARK on 23 Motion to Appear Pro Hac Vice, 22 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 05/19/2010, Receipt Number 904407. (jd) (Entered: 06/03/2010)
26 ENDORSED LETTER addressed to Magistrate Judge Andrew J. Peck from Samuel Miller dated 6/9/2010 re: Plaintiffs respectfully request that the Court schedule an informal conference to address Plaintiffs' request that the AEO and confidentiality designations on the 30−day letter and adjudication criteria documents, as well as the Patterson deposition, be removed. ENDORSEMENT: The Government is requested to respond to this letter by 6/16/10. (Signed by Magistrate Judge Frank Maas on 6/9/2010) (tve) (Entered: 06/10/2010)
27 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Allison D. Penn dated 6/10/2010 re: Defendants respectfully request that the Court schedule a

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06/28/2010 06/29/2010 07/16/2010 07/16/2010 07/16/2010 08/05/2010
08/16/2010
08/27/2010 09/10/2010 09/10/2010 09/10/2010 09/30/2010

pre−motion conference in this matter. Counsel request that the Court briefly extend the defendant's time to file its motion to dismiss until a date following the conference. ENDORSEMENT: The Court will hold a premotion conf. on 6/28/10 at 3 p.m. in Courtroom 20A. So Ordered. (Signed by Magistrate Judge Frank Maas on 6/11/2010) (jfe) (Entered: 06/14/2010)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 6/28/2010. (mro) (Entered: 06/29/2010)
28 ORDER: It is hereby ordered that Defendants shall serve and file their motion to dismiss by July 16, 2010. Plaintiffs shall serve and file their response by August 13, 2010. Defendants may serve and file a reply by August 27, 2010. (Signed by Magistrate Judge Frank Maas on 6/28/2010) Copies Mailed By Chambers (jpo) (Entered: 06/30/2010)
29 MOTION to Dismiss. Document filed by Gary Locke.(Filor, Daniel) (Entered: 07/16/2010)
30 MEMORANDUM OF LAW in Support re: 29 MOTION to Dismiss.. Document filed by Gary Locke. (Filor, Daniel) (Entered: 07/16/2010)
31 DECLARATION of Kathryn H. Anderson in Support re: 29 MOTION to Dismiss.. Document filed by Gary Locke. (Attachments: # 1 Exhibit Exh A (part 1 of 5), # 2 Exhibit Exh A (part 2 of 5), # 3 Exhibit Exh A (part 3 of 5), # 4 Exhibit Exh A (part 4 of 5), # 5 Exhibit Exh A (part 5 of 5))(Filor, Daniel) (Entered: 07/16/2010)
32 FIRST AMENDED COMPLAINT amending 1 Complaint against Gary Locke.Document filed by Evelyn Houser, Eugene Johnson, Precious Daniels, Sandra Anderson, Ignacio Riesco, Felicia Rickett−Samuels, Anthony Gonzalez. Related document: 1 Complaint filed by Evelyn Houser, Eugene Johnson.(mro) (Additional attachment(s) added on 8/6/2010: # 1 Exhibit A) (ama). (Entered: 08/05/2010)
33 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 8/13/2010 re: We write on behalf of all the parties to respectfully request that the Court So Order the below schedule relating to the briefing of a motion to dismiss to be filed by defendant in response to plaintiffs' amended complaint. The parties have agreed upon the following briefing schedule, which we respectfully request Your Honor to So Order: Defendant to file his motion to dismiss on or before September 10, 2010; Plaintiffs' memorandum in opposition to be filed on or before October 1, 2010; and Defendant's reply memorandum to be filed 11 days after plaintiffs' opposition. ENDORSEMENT: SO ORDERED. ( Motions due by 9/10/2010, Responses due by 10/1/2010) (Signed by Magistrate Judge Frank Maas on 8/16/2010) (jmi) (Entered: 08/17/2010)
34 NOTICE OF CHANGE OF ADDRESS by Samuel Rand Miller on behalf of Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. New Address: Outten &Golden LLP, 3 Park Avenue, Floor 29, New York, New York, USA 10016, (212) 245−1000. (Miller, Samuel) (Entered: 08/27/2010)
35 MOTION to Dismiss Amended Complaint. Document filed by Gary Locke.(Filor, Daniel) (Entered: 09/10/2010)
36 DECLARATION of Kathryn H. Anderson in Support re: 35 MOTION to Dismiss Amended Complaint.. Document filed by Gary Locke. (Attachments: # 1 Exhibit Part 1 (of 2) of Exh. A to Supplemental Anderson Declaration, # 2 Exhibit Part 2 (of 2) of Exhibit A to Supplemental Anderson Declaration)(Filor, Daniel) (Entered: 09/10/2010)
37 MEMORANDUM OF LAW in Support re: 35 MOTION to Dismiss Amended Complaint.. Document filed by Gary Locke. (Filor, Daniel) (Entered: 09/10/2010)
38 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 9/29/10 re: Plaintiffs seek a one−week extension of their time to file an opposition brief, such that it would be due on October 8, 2010. Plaintiffs also request an extension of the 25−page limitation such that they can file a 32−page opposition. Defendant seeks an extension of its time to file a reply brief so that the

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10/08/2010 10/08/2010 10/22/2010 10/22/2010 10/25/2010 10/26/2010
11/02/2010 12/10/2010 03/15/2011
03/29/2011 03/30/2011 04/04/2011

deadline would be October 22, 2010. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. ( Responses due by 10/8/2010, Replies due by 10/22/2010.) (Signed by Magistrate Judge Frank Maas on 9/30/10) (djc) (Entered: 09/30/2010)
***DELETED DOCUMENT. Deleted document number 39 Memorandum of Law in Opposition to Motion. The document was incorrectly filed in this case.(See doc.#43) (KA) (Entered: 11/01/2010)
***DELETED DOCUMENT. Deleted document number 40 Declaration of Samuel R. Miller in Opposition to Motion. The document was incorrectly filed in this case.(See doc,#43) (KA) (Entered: 11/01/2010)
41 REPLY MEMORANDUM OF LAW in Support re: 35 MOTION to Dismiss Amended Complaint.. Document filed by Gary Locke. (Filor, Daniel) (Entered: 10/22/2010)
42 DECLARATION of Kathryn H. Anderson in Support re: 35 MOTION to Dismiss Amended Complaint.. Document filed by Gary Locke. (Attachments: # 1 Exhibit)(Filor, Daniel) (Entered: 10/22/2010)
43 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Samuel Miller dated 10/25/10 re: Request to refile certain redacted exhibits in connection with the Opposition to Defendant's Motion to Dismiss. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Frank Maas on 10/25/10) (cd) (Entered: 10/25/2010)
44 DECLARATION of Samuel R. Miller in Opposition re: 35 MOTION to Dismiss Amended Complaint.. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28)(Miller, Samuel) (Entered: 10/26/2010)
45 REPLY MEMORANDUM OF LAW in Opposition re: 35 MOTION to Dismiss Amended Complaint.. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. (Miller, Samuel) (Entered: 11/02/2010)
46 NOTICE OF CHANGE OF ADDRESS by Samuel Rand Miller on behalf of Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. New Address: Outten &Golden LLP, 3 Park Avenue, Floor 29, New York, New York, U.S.A. 10016, 212−245−1000. (Miller, Samuel) (Entered: 12/10/2010)
47 DECISION AND ORDER, that for the reasons set forth in this Order, the Census Bureau's motion to dismiss the FAC pursuant to Rule 12(b)(6), (ECF No. 35), is granted with respect to the individual claims of plaintiffs Rickett−Samuels and Anderson as well as the Plaintiffs' class claims, but denied with respect to the individual claims of the remaining Plaintiffs. (Signed by Magistrate Judge Frank Maas on 3/14/11) Copies Sent By Chambers. (pl) (Entered: 03/15/2011)
48 ANSWER to Amended Complaint. Document filed by Gary Locke. Related document: 32 Amended Complaint, filed by Evelyn Houser, Ignacio Riesco, Eugene Johnson, Felicia Rickett−Samuels, Anthony Gonzalez, Sandra Anderson, Precious Daniels.(La Morte, Tara) (Entered: 03/29/2011)
49 ORDER OF AUTOMATIC REFERRAL TO MEDIATION (See M−10−468 Order filed July 15, 2010) Mediator to be Assigned by 4/11/2011. Mediator Expertise Request due by 4/4/2011. (Signed by Judge Loretta A. Preska on 01/03/11) (sc) (Entered: 03/30/2011)
MEDIATOR EXPERTISE REQUEST Mediator to be Assigned by 4/14/2011.(O'Malley, George) (Entered: 04/04/2011)

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 25 of 59

04/05/2011 04/05/2011 04/12/2011 04/13/2011 04/27/2011 04/29/2011
04/29/2011 05/05/2011 05/05/2011 05/09/2011
05/09/2011
06/02/2011

NOTICE OF MEDIATOR ASSIGNMENT − Notice of assignment of mediator. Mediator Schedule due by 5/5/2011.(ms) (Entered: 04/05/2011)
***DELETED DOCUMENT. Deleted document number 56 Transcript. The document was incorrectly filed in this case. (tro) (Entered: 05/13/2011)
MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 5/4/11 10:30 AM 233 Broadway.(O'Malley, George) (Entered: 04/12/2011)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 4/13/2011. (mbe) (Entered: 04/19/2011)
50 ORDER OF WITHDRAWAL FROM MEDIATION. For the reasons previously discussed with counsel, I conclude that a mediation at this time would not be productive. Accordingly, I direct that this case be withdrawn from mediation until further notice. (Signed by Magistrate Judge Frank Maas on 4/27/11); Copies sent by Chambers (djc) (Entered: 04/28/2011)
51 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 4/28/11 re: counsel for defendant respectfully requests that the Court enter the parties' agreed−upon schedule as follows: Plaintiffs move for leave to amend, attaching second amended complaint; parties exchange declarations by May 5, 2011: Parties serve notices of deposition, if any by May 12, 2011: Deadline to conduct depositions, if any by June 2, 2011: Defendant files opposition papers by June 7, 2011: Plaintiffs file reply papers by June 21, 2011. ENDORSEMENT: So Ordered.( Deposition due by 6/2/2011., Motions due by 5/5/2011., Responses due by 6/7/2011, Replies due by 6/21/2011.) (Signed by Magistrate Judge Frank Maas on 4/28/11) (pl) Modified on 4/29/2011 (pl). (Entered: 04/29/2011)
MEDIATOR SESSION NOT HELD Mediator Session scheduled for 05/04/2011 at 233 Broadway was NOT held.(O'Malley, George) (Entered: 04/29/2011)
52 MOTION for Leave to File Second Amended Complaint. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco.(Miller, Samuel) (Entered: 05/05/2011)
53 MEMORANDUM OF LAW in Support re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. (Attachments: # 1 Exhibit A)(Miller, Samuel) (Entered: 05/05/2011)
54 TRANSCRIPT of Proceedings held on 4/13/2011 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/3/2011. Redacted Transcript Deadline set for 6/13/2011. Release of Transcript Restriction set for 8/11/2011.(laq) (Entered: 05/09/2011)
55 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a proceeding held on 4/13/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(laq) (Entered: 05/09/2011)
56 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 6/2/2011 re: The Government seeks an extension of its time to file its opposition brief to address issues raised by the proposed new Plaintiffs, such that it's brief would be due on June 28, 2011, rather than June 7. The date for the Government to provide Plaintiffs with any additional declarations in support of it's opposition brief would be June 23, 2011, and Plaintiffs reserve their rights to conduct discovery in response to such declarations. Plaintiffs seek an extension of their time to file a reply so that deadline would be July 15, 2011. ENDORSEMENT: Government's brief due 6/28/2011. Plaintiff's reply brief due

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 26 of 59

06/13/2011
06/16/2011 06/21/2011 06/24/2011 06/24/2011
06/27/2011 06/28/2011 06/28/2011 06/28/2011 06/28/2011 06/28/2011

7/15/2011 (Signed by Magistrate Judge Frank Maas on 6/2/2011) (js) (Entered: 06/03/2011)
57 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated 6/10/11 re: Census respectfully requests that the Court permit it to file a motion to dismiss Plaintiffs' claims for injunctive and declaratory relief pursuant to Federal Rule of Civil Procedure 12(b)(1), or schedule a pre−motion conference to discuss the matter. ENDORSEMENT: The Court will hold a pre−motion telephone conference on 6/21 at 2:00 p.m. The government should initiate the call. (Pre−Motion Conference set for 6/21/2011 at 02:00 PM before Magistrate Judge Frank Maas. Telephone Conference set for 6/21/2011 at 02:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 6/13/11) (rjm) (Entered: 06/14/2011)
58 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Samuel Miller dated 6/14/11 re: Plaintiffs respectfully request an extension of time in which to submit a response to Defendant's letter brief until Friday, June 17th. ENDORSEMENT: Application granted. So ordered. (Signed by Magistrate Judge Frank Maas on 6/14/11) (rjm) (Entered: 06/17/2011)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 6/21/2011. (mbe) (Entered: 06/23/2011)
72 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION. Attorney Ray P. McClain for Precious Daniels,Ray P. McClain for Anthony Gonzalez,Ray P. McClain for Evelyn Houser,Ray P. McClain for Eugene Johnson,Ray P. McClain for Ignacio Riesco admitted Pro Hac Vice. (Signed by Magistrate Judge Frank Maas on 6/23/11) (cd) (Entered: 07/14/2011)
73 ORDER. It is hereby ORDERED that by June 28, 2011, the Government shall serve and file (a) its papers in opposition to Plaintiffs' motion to amend the complaint, and (b) its motion to dismiss Plaintiffs' claims for declaratory and injunctive relief pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. By July 29, 2011, Plaintiffs shall serve and file (a) their reply papers with respect to their motion to amend the complaint, and (b) their papers in opposition to the Government's motion to dismiss. By August 12, 2011, the Government shall serve and file its reply papers with respect to its motion to dismiss. (Deft.'s Motions to amend due by 6/28/2011. Responses due by 7/29/2011. Replies due by 8/12/2011.) (Signed by Magistrate Judge Frank Maas on 6/21/11) Copies Sent By Chambers. (rjm) (Entered: 07/14/2011)
59 ENDORSED LETTER: addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 6/24/2011 re: Counsel for defendant Gary Locke, Secretary of the U.S. Department of Commerce write to request permission to file memorandum of law up to 40 pages in opposition to Plaintiffs' motion for leave to amend. ENDORSEMENT: Application Granted. So Ordered. (Signed by Magistrate Judge Frank Maas on 6/27/11) (js) (Entered: 06/28/2011)
60 NOTICE OF APPEARANCE by Natalie Nancy Kuehler on behalf of Gary Locke (Kuehler, Natalie) (Entered: 06/28/2011)
61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief. Document filed by Gary Locke. Responses due by 7/29/2011(La Morte, Tara) (Entered: 06/28/2011)
62 MEMORANDUM OF LAW in Support re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Gary Locke. (La Morte, Tara) (Entered: 06/28/2011)
63 AFFIDAVIT of Sandra Patterson in Support re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Gary Locke. (La Morte, Tara) (Entered: 06/28/2011)
64 AFFIDAVIT of Frank Vitrano in Support re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Gary Locke. (La Morte, Tara) (Entered: 06/28/2011)

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06/28/2011 06/28/2011 06/28/2011 06/28/2011 06/28/2011 06/28/2011 06/28/2011 07/22/2011
07/22/2011
07/26/2011 07/28/2011
07/29/2011 07/29/2011

65 AFFIDAVIT of Viola Lewis Willis in Support re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Gary Locke. (La Morte, Tara) (Entered: 06/28/2011)
66 AFFIDAVIT of Tara M. La Morte in Support re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Gary Locke. (Attachments: # 1 Exhibit 1)(La Morte, Tara) (Entered: 06/28/2011)
67 MEMORANDUM OF LAW in Opposition re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Gary Locke. (Kuehler, Natalie) (Entered: 06/28/2011)
68 DECLARATION of Viola Lewis Willis in Opposition re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Gary Locke. (Kuehler, Natalie) (Entered: 06/28/2011)
69 DECLARATION of Daniel Pennacchia in Opposition re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Gary Locke. (Kuehler, Natalie) (Entered: 06/28/2011)
70 DECLARATION of Kathryn H. Anderson in Opposition re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Gary Locke. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Kuehler, Natalie) (Entered: 06/28/2011)
71 DECLARATION of Viola Lewis Willis in Opposition re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Gary Locke. (Attachments: # 1 Exhibit A)(Kuehler, Natalie) (Entered: 06/28/2011)
74 TRANSCRIPT of Proceedings re: conference held on 6/21/2011 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/15/2011. Redacted Transcript Deadline set for 8/25/2011. Release of Transcript Restriction set for 10/24/2011.(laq) (Entered: 07/22/2011)
75 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 6/21/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(laq) (Entered: 07/22/2011)
76 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 7/26/11 re: Plaintiffs respectfully request permission to file a reply brief of no more than 25 pages. ENDORSEMENT: Application granted. So ordered. (Signed by Magistrate Judge Frank Maas on 7/26/11) (rjm) (Entered: 07/27/2011)
77 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 7/28/11 re: Counsel for the plaintiffs requests a 3 day extension of the deadline to file plaintiffs' memorandum of law in reply to defendant's opposition to plaintiff's motion for leave to amend until 8/3/11. ENDORSEMENT: Application granted. So ordered. Set Deadlines/Hearing as to 52 MOTION for Leave to File Second Amended Complaint:( Replies due by 8/3/2011.) (Signed by Magistrate Judge Frank Maas on 7/28/2011) (mro) (Entered: 07/29/2011)
78 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Opposition re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Miller, Samuel) Modified on 8/5/2011 (db). (Entered: 07/29/2011)
79 DECLARATION of Samuel R. Miller in Opposition re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief..

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07/29/2011 07/29/2011 07/29/2011 08/01/2011 08/03/2011 08/03/2011 08/10/2011
08/12/2011 08/12/2011 08/17/2011
08/19/2011

Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Miller, Samuel) (Entered: 07/29/2011)
80 DECLARATION of Precious Daniels in Opposition re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Miller, Samuel) (Entered: 07/29/2011)
81 DECLARATION of Vincent Daniels in Opposition re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Miller, Samuel) (Entered: 07/29/2011)
82 DECLARATION of Anthony Gonzalez in Opposition re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Miller, Samuel) (Entered: 07/29/2011)
83 MEMORANDUM OF LAW in Opposition re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Miller, Samuel) (Entered: 08/01/2011)
84 REPLY MEMORANDUM OF LAW in Support re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Attachments: # 1 Exhibit A)(Miller, Samuel) (Entered: 08/03/2011)
85 DECLARATION of Samuel R. Miller in Support re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Miller, Samuel) (Entered: 08/04/2011)
86 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Daniel P. Filor, Tara M. La Morte and Natalie N. Kuehler dated 8/10/11 re: On behalf of defendant Gary Locke, Secretary of the U.S. Department of Commerce ("Census"), we write to respectfully request permission to file memorandum of law of up to 15 pages in reply to Plaintiffs' opposition to Census's motion to dismiss Plaintiffs' claims for prospective injunctive and declaratory relief Plaintiffs consent to this request. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 8/10/11) (djc) (Entered: 08/11/2011)
87 REPLY MEMORANDUM OF LAW in Support re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Gary Locke. (La Morte, Tara) (Entered: 08/12/2011)
88 REPLY AFFIDAVIT of Tara M. La Morte in Opposition re: 61 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Claims for Injunctive and Declaratory Relief.. Document filed by Gary Locke. (Attachments: # 1 Exhibit 1)(La Morte, Tara) (Entered: 08/12/2011)
89 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated 8/11/11 re: We write respectfully to respond to two letters submitted by Plaintiffs on August 10 and August 11, 2011, and to request that the Court conduct a prompt conference and direct the parties to limit or discontinue such piecemeal letter submissions. ENDORSEMENT: The Court will hold a telephone conference on August 19, 2011, at 2:00 p.m. Counsel should agree on who will initiate the call. (Telephone Conference set for 8/19/2011 at 02:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 8/17/11) (rjm) (Entered: 08/18/2011)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 8/19/2011. (mro) (Entered: 08/25/2011)

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09/19/2011 12/02/2011 12/02/2011
12/22/2011 01/04/2012 01/04/2012 01/13/2012 01/20/2012 01/23/2012 01/24/2012 01/25/2012 02/08/2012
03/22/2012

90 REPLY MEMORANDUM OF LAW in Opposition re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Gary Locke. (Kuehler, Natalie) (Entered: 09/19/2011)
91 PROTECTIVE ORDER... regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Magistrate Judge Frank Maas on 12/2/2011) (rjm) (Entered: 12/05/2011)
92 PRIVACY ACT ORDER. IT IS HEREBY ORDERED THAT: 1. To the extent that the Government objects to providing certain information and documents or any other information or material sought by Plaintiffs during the course of this action on the ground that such production is prohibited by the Privacy Act of 1974, 5 U.S.C. § 552a, the Government's objection is overruled and the Government shall produce the requested documents and other information or material. 5 U.S.C. § 552a(b)(11). 2. This Order is without prejudice to any other objections the parties may have to producing such documents and information. (Signed by Magistrate Judge Frank Maas on 12/2/2011) (rjm) (Entered: 12/05/2011)
93 DECLARATION of Viola Lewis Willis in Opposition re: 52 MOTION for Leave to File Second Amended Complaint.. Document filed by Gary Locke. (Filor, Daniel) (Entered: 12/22/2011)
94 NOTICE of of Record of Party's Death. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Miazad, Ossai) (Entered: 01/04/2012)
95 NOTICE of Supplemental Authority re: 84 Reply Memorandum of Law in Support of Motion. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Miazad, Ossai) (Entered: 01/04/2012)
97 MOTION for Jane Dolkart to Appear Pro Hac Vice. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco.(pgu) (Entered: 01/23/2012)
96 MOTION for Anjana Samant to Withdraw as Attorney of Record by Anjana Samant. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. (Attachments: # 1 Text of Proposed Order)(Samant, Anjana) (Entered: 01/20/2012)
98 NOTICE of Supplemental Authority re: 84 Reply Memorandum of Law in Support of Motion. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Ignacio Riesco. (Attachments: # 1 Exhibit A)(Miazad, Ossai) (Entered: 01/23/2012)
CASHIERS OFFICE REMARK on 97 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 01/13/2012, Receipt Number 1027015. (jd) (Entered: 01/24/2012)
99 MEMO ENDORSED granting 97 Motion for Jane Dolkart to Appear Pro Hac Vice for plaintiffs. (Signed by Magistrate Judge Frank Maas on 1/23/2012) (cd) (Entered: 01/25/2012)
100 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Natalie N. Kuehler dated 2/8/2012 re: The Government respectfully requests that the Court disregard Plaintiffs' January 23, 2012 letter and direct Plaintiffs to comply with the Court's prior order prohibiting any further submissions on that Motion. ENDORSEMENT: While I appreciate efforts to clarify the record, I have received quite enough written material. Counsel, therefore are directed to make no further submissions about anything other than scheduling before I rule on the outstanding motions. (Signed by Magistrate Judge Frank Maas on 2/8/2012) (jfe) (Entered: 02/14/2012)
101 DECISION AND ORDER granting in part and denying in part 52 Motion for Leave to File Document; denying 61 Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth above, the Census Bureau's motion to dismiss the

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03/30/2012 04/03/2012
04/09/2012 04/17/2012 04/17/2012 04/26/2012 04/30/2012
05/04/2012

Plaintiffs' claims for injunctive and declaratory relief (ECF No. 61) is denied, and the Plaintiffs' motion for leave to amend (ECF No. 52) is denied with respect to Anderson's claims, and granted in all other respects. Consequently, Plaintiffs Johnson, Houser, Gonzalez, Riesco, and Daniels may assert individual claims, and Plaintiffs Rickett− Samuels, Scott, Desphy, and Kargbo may assert both individual and class claims. (Signed by Magistrate Judge Frank Maas on 3/21/2012) Copies Sent By Chambers. (lmb) (Entered: 03/22/2012)
102 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 3/30/2012 re: counsel for plaintiff respectfully request that you "so order" this letter to change the docket to correctly reflect that John Bryson is the named defendant in this lawsuit. ENDORSEMENT: Application Granted. So Ordered.., John Bryson added. Gary Locke terminated. (Signed by Magistrate Judge Frank Maas on 3/30/2012) (pl) (Entered: 04/02/2012)
103 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Outten &Golden,LLP dated 3/30/2012 re: Counsel request a pre−motion conference to seek clarification and/or reconsideration of the Court's March 22, 2012 Order to dismiss the claims of Sandra Anderson for failure to exhaust the administrative filing requirement. ENDORSEMENT: Given the circumstances herein set forth, it seems to me that Ms. Anderson can sue in her own right, which I would suggest be accomplished through a further amendment, to the proposed second amended complaint. *If counsel cannot reach an agreement on this, they should call Chambers to schedule a conference. (Signed by Magistrate Judge Frank Maas on 4/3/2012) (jfe) (Entered: 04/09/2012)
104 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 3/30/2012 re: counsel for plaintiffs respectfully request that you "so order" this letter to change the docket to correctly reflect that John Bryson is the named defendant in this lawsuit. ENDORSEMENT: Application Granted. (Signed by Magistrate Judge Frank Maas on 3/30/2012) (pl) (Entered: 04/10/2012)
105 ORDER: By April 24, 2012, the parties shall submit to Chambers a proposed joint discovery scheduling order. Motions due by 4/27/2012. Responses due by 5/11/2012. Replies due by 5/18/2012. Status Conference set for 6/13/2012 at 02:00 PM before Magistrate Judge Frank Maas. (Signed by Magistrate Judge Frank Maas on 4/17/2012) Copies Faxed By Chambers. (ft) (Entered: 04/17/2012)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 4/17/2012. (js) (Entered: 04/18/2012)
106 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 4/25/2012 re: Request for the following briefing schedule for plaintiff motion for reconsideration. ENDORSEMENT: Application granted. (Motion due by 5/4/2012. Response due by 5/18/2012 Reply due by 5/25/2012.) (Signed by Magistrate Judge Frank Maas on 4/26/2012) (cd) (Entered: 04/27/2012)
107 SCHEDULING ORDER: A telephonic status conference with counsel to the parties and the Court will be held on June 13, 2012 at 2 p.m. Depositions as to liability (Stage 1) shall be completed by December 31, 2012. A settlement conference with counsel to the parties and the Court will be held on January 7, 2013, at 10 am. Liability and expert discovery as to Stage 1 issues shall be completed by May 10, 2013. Plaintiffs shall make expert disclosures required by Fed. R. Civ. P. 26(a)(2) by February 1, 2013. All depositions of Plaintiffs' experts shall be completed by February 28, 2013. Defendant shall make expert disclosures required by Fed. R. Civ. P. 26(a)(2) by March 29, 2013. All depositions of Defendant's experts shall be completed by April 22, 2013. Motions due by 2/1/2013. Responses due by 3/29/2013 Replies due by 5/10/2013. Deposition due by 2/28/2013. Expert Discovery due by 5/10/2013. Settlement Conference set for 1/7/2013 at 10:00 AM before Magistrate Judge Frank Maas. Telephone Conference set for 6/13/2012 at 03:00 PM before Magistrate Judge Frank Maas. (Signed by Magistrate Judge Frank Maas on 4/30/2012) (rdz) (Entered: 05/01/2012)
108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco.(Klein, Adam) (Entered: 05/04/2012)

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 31 of 59

05/04/2012 05/04/2012 05/11/2012
05/18/2012 05/18/2012 05/18/2012 05/25/2012 05/25/2012 06/25/2012
07/13/2012
07/17/2012

109 MEMORANDUM OF LAW in Support re: 108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration.. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. (Klein, Adam) (Entered: 05/04/2012)
110 DECLARATION of Ossai Miazad in Support re: 108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration.. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Felicia Rickett−Samuels, Ignacio Riesco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Miazad, Ossai) (Entered: 05/04/2012)
111 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 5/10/2012 re: counsel for Plaintiffs respectfully submits this response to Defendant's letter of May 3, 2012, requesting that Plaintiff Eugene Johnson be dismissed from this action. ENDORSEMENT: In light of this letter, the claims of plaintiff Eugene Johnson are dismissed pursuant to Fed.R. Civ. P. 25(a)(1).., Eugene Johnson terminated. (Signed by Magistrate Judge Frank Maas on 5/11/2012) (pl) (Entered: 05/14/2012)
112 MEMORANDUM OF LAW in Opposition re: 108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration.. Document filed by John Bryson. (Filor, Daniel) (Entered: 05/18/2012)
113 DECLARATION of Beverly Stewart in Opposition re: 108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration.. Document filed by John Bryson. (Attachments: # 1 Exhibit A (EEO Poster), # 2 Exhibit B (Anderson I9))(Filor, Daniel) (Entered: 05/18/2012)
114 DECLARATION of Daniel P. Filor in Opposition re: 108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration.. Document filed by John Bryson. (Attachments: # 1 Exhibit A (2012−3−30 letter), # 2 Exhibit B (2012−5−8 email), # 3 Exhibit C (Houser EEO decision), # 4 Exhibit D (Heaton EEO decision), # 5 Exhibit E (2010−6−10 letter))(Filor, Daniel) (Entered: 05/18/2012)
115 REPLY MEMORANDUM OF LAW in Support re: 108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration.. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Felicia Rickett−Samuels, Ignacio Riesco. (Klein, Adam) (Entered: 05/25/2012)
116 REPLY AFFIDAVIT of Ossai Miazad in Support re: 108 MOTION to Amend/Correct Complaint or In the Alternative for Reconsideration.. Document filed by Sandra Anderson, Precious Daniels, Anthony Gonzalez, Evelyn Houser, Felicia Rickett−Samuels, Ignacio Riesco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Miazad, Ossai) (Entered: 05/25/2012)
117 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Natalie N. Kuehler dated 6/21/2012 re: I therefore respectfully request that your Honor "so order" this letter to change the docket to reflect that the defendant in this lawsuit is now "Rebecca M. Blank, Acting Secretary, United States Department of Commerce", and that the defendant continues to be represented by Assistant U.S. Attorneys Daniel P. Filor, Tara M. LaMorte and Natalie N. Kuehler as lead attorneys and attorneys to be noticed. ENDORSEMENT: So ordered. (Signed by Magistrate Judge Frank Maas on 6/22/2012) (djc) (Entered: 06/25/2012)
118 MEMO ENDORSED ON MOTION TO WITHDRAW AS ATTORNEY OF RECORD: THE COURT HEREBY GRANTS the Motion to Withdraw as Attorney of Record, permitting Anjana Samant, counsel for Plaintiffs Eugene Johnson, Evelyn Houser, Sandra Anderson, Anthony Gonzalez, Ignacio Riesco, Precious Daniels, and Felicia Rickett−Samuels, on behalf of themselves and all others similarly situated, to withdraw from representation for the reasons set forth therein. (Signed by Magistrate Judge Frank Maas on 7/13/2012) (ama) Modified on 7/19/2012 (ama). (Entered: 07/16/2012)
119 Letter addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 5/3/2012 re: We write on behalf of defendant John E. Bryson, Secretary of the United States Department of Commerce (the "Government"), and respectfully

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07/30/2012 08/03/2012 09/07/2012
09/07/2012 09/10/2012 09/19/2012
09/19/2012 09/21/2012 09/21/2012
09/27/2012 10/05/2012 10/15/2012

submit that plaintiff Eugene Johnson should be dismissed from this action and his named should be removed from the caption as a named plaintiff. Document filed by Rebecca M. Blank.(lmb) (Entered: 07/23/2012)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 7/30/2012. (djc) (Entered: 08/06/2012)
120 DECISION AND ORDER denying 108 Motion to Amend/Correct. For the reasons set forth above, the Plaintiffs' motion to amend the complaint, or, in the alternative, for reconsideration (ECF No.108) is denied.SO ORDERED.(Signed by Magistrate Judge Frank Maas on 8/03/2012) Copies Sent By Chambers. (ama) (Entered: 08/03/2012)
121 ORDER. It is hereby ORDERED that: The Defendant shall submit forthwith for my in camera review the nine documents which the Defendant believes are subject to the deliberative process privilege. By October 5, 2012, the Defendant shall serve and file a declaration explaining why these materials are protected by the deliberative process privilege. By October 15, 2012, the Plaintiffs shall serve and file their response. A further telephone conference shall be held on November 7, 2012, at 11:00 a.m. Counsel for the Plaintiff should initiate that conference by calling Chambers at (212) 805−6727. (Telephone Conference set for 11/7/2012 at 11:00 AM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 9/7/2012) Copies Sent By Chambers via ECF. (rjm) (Entered: 09/10/2012)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 9/7/2012. (lmb) (Entered: 09/18/2012)
122 NOTICE OF APPEARANCE by Amber Christine Trzinski on behalf of Precious Daniels, Anthony Gonzalez, Evelyn Houser, Felicia Rickett−Samuels, Ignacio Riesco (Trzinski, Amber) (Entered: 09/10/2012)
123 MOTION for Sally J. Abrahamson to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−7829816. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Precious Daniels, Anthony Gonzalez, Evelyn Houser, Ignacio Riesco. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Good Standing − District of Columbia, # 3 Certificate of Good Standing − State of Texas)(Abrahamson, Sally) (Entered: 09/19/2012)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 123 MOTION for Sally J. Abrahamson to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−7829816. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (pgu) (Entered: 09/19/2012)
124 ORDER granting 123 Motion for Sally Jasmine Abrahamson to Appear Pro Hac Vice (HEREBY ORDERED by Magistrate Judge Frank Maas)(Text Only Order) (Maas, Frank) (Entered: 09/21/2012)
125 SECOND AMENDED COMPLAINT amending 32 Amended Complaint, against Rebecca M. Blank.Document filed by Felicia Rickett−Samuels, Evelyn Houser, Ignacio Riesco, Precious Daniels, Anthony Gonzalez, Scotty Desphy, Chynell Scott, Vivian Kargbo. Related document: 32 Amended Complaint, filed by Evelyn Houser, Ignacio Riesco, Eugene Johnson, Felicia Rickett−Samuels, Anthony Gonzalez, Sandra Anderson, Precious Daniels.***Accepted for filing by the Honorable Frank Maas on 9/25/2012. (mro) (tro). (Entered: 09/27/2012)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Adam T Klein for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules &Instructions. E−MAIL the PDF for Document 125 Amended Complaint, to: caseopenings@nysd.uscourts.gov. (mro) (Entered: 09/27/2012)
126 DECLARATION of Michael Toland., DECLARATION of Michael Toland in Opposition. Document filed by Rebecca M. Blank. (Filor, Daniel) (Entered: 10/05/2012)
127 TRANSCRIPT of Proceedings re: proceedings held on 9/7/2012 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771.

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 33 of 59

10/15/2012
10/19/2012 10/22/2012 11/07/2012
11/07/2012 12/03/2012 12/03/2012 01/16/2013 01/18/2013
02/08/2013

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/8/2012. Redacted Transcript Deadline set for 11/19/2012. Release of Transcript Restriction set for 1/17/2013.(tro) (Entered: 10/15/2012)
128 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a proceedings proceeding held on 9/7/2012 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(tro) (Entered: 10/15/2012)
129 ANSWER to 125 Amended Complaint,. Document filed by Rebecca M. Blank.(Kuehler, Natalie) (Entered: 10/19/2012)
130 ENDORSED LETTER addressed to Magistrate Judge Frank Maas, from Daniel P. Filor, dated 10/17/2012, re: request leave to submit a letter in reply to plaintiffs' letter dated October 15, 2012 − to submit a reply letter on or before October 22, 2012. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 10/21/2012) (ja) (Entered: 10/22/2012)
131 ORDER: It is hereby ORDERED that the Defendant shall submit forthwith the additional draft adjudication criteria document discussed during the telephone conference (for in camera review); and the final version of that document. By February 3, 2013, all depositions shall be completed. A further telephone conference shall be held on December 3, 2012, at 11:00 a.m. Counsel for the Plaintiffs should initiate that conference by calling Chambers at (212) 805−6727. A settlement conference shall be held on February 13, 2013, at 2 p.m. in Courtroom 20A. My settlement procedures are attached. ( Deposition due by 2/3/2013.) ( Settlement Conference set for 2/13/2013 at 02:00 PM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas. Telephone Conference set for 12/3/2012 at 11:00 AM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 11/7/2012) Copies Sent By Chambers. (ja) (Entered: 11/07/2012)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 11/7/2012. (djc) (Entered: 11/13/2012)
132 ORDER: Pursuant to the telephone conference held earlier today, it is hereby ORDERED that a further telephone conference shall be held on January 16, 2013, at 10:00 a.m. Counsel for the Plaintiffs should initiate that conference by calling Chambers at (212) 805−6727., ( Telephone Conference set for 1/16/2013 at 10:00 AM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 12/3/2012) (lmb) (Entered: 12/03/2012)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 12/3/2012. (djc) (Entered: 12/11/2012)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 1/16/2013. (rjm) (Entered: 01/17/2013)
133 ORDER. It is hereby ORDERED that: 1. By May 3, 2013: (a) all depositions shall be completed; and (b) the Plaintiffs shall file their motion for class certification. 2. By June 28, 2013, the Defendant shall file her papers in opposition to the Plaintiffs' motion. 3. By August 9, 2013, the Plaintiffs may file a reply. 4. A further telephone conference shall be held on March 5, 2013, at 10:00 a.m. Counsel for the plaintiffs should initiate that conference by calling Chambers at (212) 805−6727. (All Depositions due by 5/3/2013. Motions due by 5/3/2013. Responses due by 6/28/2013. Replies due by 8/9/2013. (Telephone Conference set for 3/5/2013 at 10:00 AM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 1/16/2013) Copies Sent By Chambers. (rjm) Modified on 1/18/2013 (rjm). (Entered: 01/18/2013)
134 NOTICE OF APPEARANCE by Louis Anthony Pellegrino on behalf of Rebecca M. Blank (Pellegrino, Louis) (Entered: 02/08/2013)

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02/22/2013
02/26/2013 02/26/2013 03/07/2013 03/07/2013 03/07/2013 03/07/2013 03/07/2013

135 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Natalie N. Kuehler dated 2/21/2013 re: We write on behalf of defendant Rebecca Blank, Acting Secretary of the United States Department of Commerce (the "Government), in response to the Plaintiffs' letter dated February 19, 2013, which requests "an informal in−person conference with the Court" regarding alleged discovery deficiencies. Accordingly, the Government requests that the Court direct Plaintiffs to resubmit a letter that complies with the three−page limit set forth in Your Honor's Individual Practices, or, in the alternative, grant the Government until March 4, 2013−the day prior to the next telephonic status conference in this case−to submit its response. ENDORSEMENT: The Government may have until 3/4 to respond. The 3/5 conference is adjourned to 3/11 at 2 pm in Courtroom 9A. (Telephone Conference set for 3/11/2013 at 02:00 PM in Courtroom 9A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 2/21/2013) (djc) Modified on 2/22/2013 (djc). Modified on 2/27/2013 (djc). (Entered: 02/22/2013)
136 ORDER: I have reviewed Plaintiffs' letter dated February 19, 2013, to which I have received no response. The Defendant is directed to respond to that letter by March 4, 2013. Thereafter, I will address the issues raised by the Plaintiffs' letter at a conference on March 12, 2013, at 2 p.m., in Courtroom 9A. I do not wish to receive any reply letter prior to that conference. (Signed by Magistrate Judge Frank Maas on 2/26/2013) (djc) (Entered: 02/27/2013)
Set/Reset Hearings: Status Conference set for 3/12/2013 at 02:00 PM in Courtroom 9A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas. (djc) (Entered: 02/27/2013)
137 TRANSCRIPT of Proceedings re: proceedings held on 11/7/2012 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2013. Redacted Transcript Deadline set for 4/11/2013. Release of Transcript Restriction set for 6/10/2013.(tro) (Entered: 03/07/2013)
138 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a proceedings proceeding held on 11/7/2012 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(tro) (Entered: 03/07/2013)
139 TRANSCRIPT of Proceedings re: proceedings held on 12/3/2012 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2013. Redacted Transcript Deadline set for 4/11/2013. Release of Transcript Restriction set for 6/10/2013.(tro) (Entered: 03/07/2013)
140 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a proceedings proceeding held on 12/3/2012 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(tro) (Entered: 03/07/2013)
141 TRANSCRIPT of Proceedings re: proceedings held on 1/16/2013 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2013. Redacted Transcript Deadline set for 4/11/2013. Release of Transcript Restriction set for 6/10/2013.(tro) (Entered: 03/07/2013)

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03/07/2013 03/11/2013
03/12/2013 03/19/2013
04/17/2013 04/17/2013
04/17/2013 04/17/2013 04/17/2013

142 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a proceedings proceeding held on 1/16/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(tro) (Entered: 03/07/2013)
143 DECISION AND ORDER: By letter dated 8/31/2012, the plaintiffs have sought to compel the production of certain documents withheld by the defendant on the basis of the deliberative process privilege. Having reviewed in camera the documents as to which I have sustained the defendant's claim of privilege, I find that they are not highly relevant to the claims and defenses of the parties. Indeed, their utility would at best be marginal. The plaintiffs therefore have failed to make a showing adequate for this Court to compel the production of those documents. (Signed by Magistrate Judge Frank Maas on 3/11/2013) Copies Sent By Chambers. (tro) (Entered: 03/11/2013)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 3/12/2013. (djc) (Entered: 03/14/2013)
144 REVISED SCHEDULING ORDER: Plaintiffs' Motion for Class Certification due by 6/4/2013. Defendant's Responses due by 7/30/2013. Plaintiffs' Replies due by 9/10/2013. All depositions of Plaintiff's experts shall be completed by 7/1/2013. All depositions of Defendant's experts shall be completed by 8/23/2013. Liability and Expert Discovery as to Stage 1 issues due by 9/10/2013. Settlement Conference set for 6/7/2013 at 10:00 AM before Magistrate Judge Frank Maas. Telephone Conference set for 4/17/2013 at 10:00 AM before Magistrate Judge Frank Maas. (Signed by Magistrate Judge Frank Maas on 3/18/2013) (djc) Modified on 3/19/2013 (djc). (Entered: 03/19/2013)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 4/17/2013. (Chambers, Richalyn) (Entered: 04/17/2013)
145 ORDER: Pursuant to the telephone conference held on April 17, 2013, it is hereby ORDERED that: 1. Briefing on the Plaintiffs' class certification motion shall proceed in accordance with the existing schedule. 2. The Plaintiffs may depose Ms. Higgs for up to five hours concerning the topics discussed during the conference. 3. The Plaintiffs may depose Ms. Cummings for up to three hours concerning the topics discussed during the conference. 4. The Defendant shall submit for in camera review the final adjudication criteria and criminal background check policies discussed during the conference. 5. The June 7, 2013 settlement conference in this matter shall proceed as scheduled. (Signed by Magistrate Judge Frank Maas on 4/17/2013) (djc) (Entered: 04/17/2013)
146 Letter addressed to Magistrate Judge Frank Maas from Lewis Steel dated 8/31/2012 re: Plaintiffs write to request a conference pursuant to Local Civil Rule 37.2 to seek an order compelling production of a subset of documents withheld by Defendant solely on the basis of the deliberative process privilege ("Challenged Documents"), or in the alternative permission to file amotion to compel. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(djc) (Entered: 04/18/2013)
147 Letter addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 9/6/2012 re: We write on behalf of defendant Rebecca Blank, Acting Secretary of the United States Department of Commerce (the "Government"), in response to plaintiffs' August 31, 2012 letter seeking a pre−motion conference to challenge certain documents withheld from production by the Government pursuant to the deliberative process privilege (the "Letter"). Document filed by Rebecca M. Blank.(djc) (Entered: 04/18/2013)
148 Letter addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 9/12/2012 re: We write on behalf of defendant Rebecca Blank, Acting Secretary of the United States Department of Commerce (the "Government"), in response to the Court's September 7, 2012 Order (the "Order") to provide the enclosed documents in camera to Your Honor for review. Document filed by Rebecca M. Blank.(djc)

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04/17/2013 04/17/2013 04/17/2013
04/17/2013 04/17/2013 04/25/2013 04/25/2013 05/06/2013

(Entered: 04/18/2013)
149 Letter addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 10/5/2012 re: We write on behalf of defendant Rebecca Blank, Acting Secretary of the United States Department of Commerce, to provide the enclosed Declaration of Michael Toland, in accordance with the Court's September 7, 2012 Order. Document filed by Rebecca M. Blank.(djc) (Entered: 04/18/2013)
150 Letter addressed to Magistrate Judge Frank Maas from Lewis M. Steel dated 10/15/2012 re: Plaintiffs write in further support of their letter motion to compel the production of certain documents ("Challenged Documents") withheld by the Government based on the deliberative process privilege. (djc) Modified on 4/19/2013 (djc). (Entered: 04/18/2013)
151 Letter addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 10/22/2012 re: We write on behalf of defendant Rebecca Blank, Acting Secretary of the United States Department of Commerce (the "Government"), with the Court's permission, to respond to plaintiffs' letter, dated October 15, 2012 (the "Oct. 15 Letter"), submitted in connection with plaintiffs' August 31, 2012, letter seeking a pre−motion conference to challenge certain documents withheld from production by the Government pursuant to the deliberative process privilege. Document filed by Rebecca M. Blank. (djc) Modified on 4/19/2013 (djc). (Entered: 04/18/2013)
152 Letter addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 11/7/2012 re: We write on behalf of defendant Rebecca Blank, Acting Secretary of the United States Department of Commerce (the "Government"), in response to the Court's November 7, 2012 direction to provide the enclosed document in camera to Your Honor for review. Document filed by Rebecca M. Blank.(djc) Modified on 4/19/2013 (djc). (Entered: 04/18/2013)
153 Letter addressed to Magistrate Judge Frank Maas from Daniel P. Filor dated 11/8/2012 re: We write on behalf of defendant Rebecca Blank, Acting Secretary of the United States Department of Commerce (the "Government"), in response to the Court's November 7, 2012 direction to provide the final version of the adjudication policy that was in effect at the time the additional document submitted in camera to Your Honor yesterday for review (the "Draft") was created. Document filed by Rebecca M. Blank. (djc) (Entered: 04/18/2013)
154 TRANSCRIPT of Proceedings re: Proceedings held on 4/17/2013 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/20/2013. Redacted Transcript Deadline set for 5/31/2013. Release of Transcript Restriction set for 7/29/2013.(sdi) (Entered: 04/25/2013)
155 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Proceedings proceeding held on 4/17/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(sdi) (Entered: 04/25/2013)
156 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 5/6/2013 re: We represent Plaintiffs in the above−referenced Title VII putative class action. Plaintiffs write to request an order compelling production of an email chain clawed back by Defendant based on an assertion of deliberative process privilege and re−produced this afternoon with nearly all of the text redacted. (Ex. A.) ENDORSEMENT: Counsel should call at 10 a.m. on 5/8. In the interim, the USAO should fax a copy of the unredacted email chain to my Chambers (212−805−6724). (Telephone Conference set for 5/8/2013 at 10:00 AM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 5/6/2013) (djc) (Entered: 05/07/2013)

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 37 of 59

05/08/2013 05/20/2013 05/20/2013 05/20/2013
06/12/2013
06/12/2013 06/13/2013 06/13/2013

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 5/8/2013. (Chambers, Richalyn) (Entered: 05/09/2013)
157 TRANSCRIPT of Proceedings re: Proceedings held on 5/8/2013 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/13/2013. Redacted Transcript Deadline set for 6/24/2013. Release of Transcript Restriction set for 8/22/2013.(sdi) (Entered: 05/20/2013)
158 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Proceedings proceeding held on 5/8/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(sdi) (Entered: 05/20/2013)
159 REVISED SCHEDULING ORDER: Depositions as to liability shall be completed by May 30, 2013. A settlement conference with counsel to the parties and the Court will be held on July 15, 2013, at 10 a.m. If this date and time are not feasible, counsel should place a conference call to chambers to reschedule. Depositions of experts identified in part 2.a.i. of this Order shall be completed by August 23, 2013. Depositions of experts identified in part 2.a.iii. of this Order shall be completed by October 4, 2013. Class Certification Motions due by 6/28/2013. Responses due by 8/23/2013 Replies due by 10/4/2013. Discovery due by 9/16/2013. Settlement Conference set for 7/15/2013 at 10:00 AM before Magistrate Judge Frank Maas. (Signed by Magistrate Judge Frank Maas on 5/20/2013) (djc) Modified on 5/20/2013 (djc). (Entered: 05/20/2013)
160 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Louis A. Pellegrino dated 6/11/2013 re: We represent the Department of Commerce and U.S. Census Bureau (collectively, "Census") in this matter) which is assigned to Your Honor for all purpose., The Court's recent Revised Scheduling Order (Dkt. Item No, 159) sets a settlement conference with counsel for the parties for 10 a.m. on July 15, 2013 (the "settlement conference"). The Government is prepared to participate in the settlement conference, but requests that the Court assign a separate Magistrate Judge to preside over the conference, in order to encourage a full discussion of possible resolutions of the case. ENDORSEMENT: Judge Dolinger has kindly agreed to assist. Counsel should contact his Chambers regarding scheduling. (Signed by Magistrate Judge Frank Maas on 6/11/2013) (djc) (Entered: 06/12/2013)
161 ORDER. It is hereby ORDERED that a settlement conference has been scheduled in the above−captioned action on MONDAY, JULY 17, 2013, at 10:00 A.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312, and as further set forth. (Settlement Conference set for 7/17/2013 at 10:00 AM in Courtroom 17D, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 6/12/2013). Copies Faxed By Chambers. (rjm) Modified on 6/13/2013 (rjm). (Entered: 06/13/2013)
162 NOTICE of Withdrawal of Counsel. Document filed by Sandra Anderson, Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Chin, Jackson) (Entered: 06/13/2013)
163 ORDER. It is hereby ORDERED that the settlement conference previously scheduled in the above−captioned action for July 17, 2013 has been rescheduled for MONDAY, JULY 15, 2013, at 10:00 A.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312, and as further set forth. (Settlement Conference set for 7/15/2013 at 10:00 AM in Courtroom 17D, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 6/13/2013). Copies Sent By Chambers via Fax and Mail. (rjm) (Entered: 06/14/2013)

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06/21/2013 06/28/2013 06/28/2013 06/28/2013 06/29/2013 06/29/2013
06/29/2013

164 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 6/21/2013 re: We write on behalf of Plaintiffs and Defendants to jointly request a 20−page extension of the page limit for both Plaintiffs' motion for class certification due on June 28, 2013, and Defendant's opposition to Plaintiffs' motion for class certification due on August 23, 2013. The parties jointly request an extension from 25 pages to 45 pages for Plaintiffs' motion and Defendant's opposition. ENDORSEMENT: Approved.(Motions due by 6/28/2013., Responses due by 8/23/2013) (Signed by Magistrate Judge Frank Maas on 6/21/2013) (rsh) (Entered: 06/21/2013)
165 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 6/27/2013 re: We represent Plaintiffs in the above−referenced Title VII putative class action. We write in advance of our motion for class certification, which is due on June 28, 2013, to respectfully request that the Court approve certain documents subject to the parties' Protective Order be filed under seal. Plaintiffs have enclosed a detailed list of the documents at issue. Plaintiffs request to file the following documents under seal as set forth herein. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 6/27/2013) (djc) (Entered: 06/28/2013)
166 MOTION to Certify Class. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B−1, # 4 Exhibit B−2, # 5 Exhibit C, # 6 Exhibit D)(Miazad, Ossai) (Entered: 06/28/2013)
167 MEMORANDUM OF LAW in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 06/28/2013)
168 DECLARATION of Ossai Miazad in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 06/29/2013)
169 DECLARATION of Ossai Miazad in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53)(Miazad, Ossai) (Entered: 06/29/2013)
170 DECLARATION of Ossai Miazad in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit 54, # 2 Exhibit 55, # 3 Exhibit 56, # 4 Exhibit 57, # 5 Exhibit 58, # 6 Exhibit 59, # 7 Exhibit 60−1, # 8 Exhibit 60−2, # 9 Exhibit 61−1, # 10 Exhibit 61−2, # 11 Exhibit 62, # 12 Exhibit 63, # 13 Exhibit 64, # 14 Exhibit 65−1, # 15 Exhibit 65−2, # 16 Exhibit 66, # 17 Exhibit 67, # 18 Exhibit 68, # 19 Exhibit 69, # 20 Exhibit 70, # 21 Exhibit 71, # 22 Exhibit 72, # 23 Exhibit 73, # 24 Exhibit 74, # 25 Exhibit 75−1, # 26 Exhibit 75−2, # 27 Exhibit 75−3, # 28 Exhibit 75−4, # 29 Exhibit 75−5, # 30 Exhibit 76−1, # 31 Exhibit 76−2, # 32 Exhibit 76−3, # 33 Exhibit 76−4, # 34 Exhibit 77, # 35 Exhibit 78, # 36 Exhibit 79, # 37 Exhibit 80, # 38 Exhibit 81, # 39 Exhibit 82, # 40 Exhibit 83, # 41 Exhibit 84, # 42 Exhibit 85, # 43 Exhibit 86, # 44 Exhibit 87, # 45 Exhibit 88, # 46 Exhibit 89, # 47 Exhibit 90, # 48 Exhibit 91, # 49 Exhibit 92, # 50 Exhibit 93, # 51 Exhibit 94, # 52 Exhibit 95, # 53 Exhibit 96, # 54 Exhibit 97, # 55 Exhibit 98, # 56 Exhibit 99, # 57 Exhibit

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 39 of 59

07/01/2013 07/02/2013
07/02/2013 07/03/2013
07/03/2013 07/08/2013 07/08/2013 07/10/2013
07/12/2013 07/12/2013

100, # 58 Exhibit 101, # 59 Exhibit 102, # 60 Exhibit 103, # 61 Exhibit 104, # 62 Exhibit 105−1, # 63 Exhibit 105−2, # 64 Exhibit 105−3, # 65 Exhibit 106)(Miazad, Ossai) (Entered: 06/29/2013)
171 SEALED DOCUMENT placed in vault.(mps) (Entered: 07/01/2013)
172 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 7/1/2013 re: We write to respectfully request that the Court grant Plaintiffs permission to file an additional seven documents subject to the parties' Protective Order under seal. Plaintiffs have enclosed a list of the documents at issue. Plaintiffs filed their motion for class certification on June 28, 2013, and have designated these documents with placeholders in anticipation of an order from the Court. Additionally, Plaintiffs seek permission to re−file their memorandum of law in support of class certification, which was filed via ECF on June 28, 2103, in order to correct formatting issues with several of the headings in the fact section and to amend the table of contents accordingly. ENDORSEMENT: Application granted. So ordered. (Signed by Magistrate Judge Frank Maas on 7/2/2013) (rjm) (Entered: 07/03/2013)
Transmission to Sealed Records Clerk. Transmitted re: 172 Endorsed Letter to the Sealed Records Clerk for the sealing or unsealing of document or case. (rjm) (Entered: 07/03/2013)
173 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Amber C. Trzinski dated 7/3/2013 re: We represent Plaintiffs in the above−referenced Title VII putative class action. We write to inform your Honor that Census consents to Plaintiffs' previous request for permission to submit a response to Census's July 2, 2013 letter by July 9, 2013. ENDORSEMENT: APPLICATION GRANTED.(Signed by Magistrate Judge Frank Maas on 7/3/2013) (djc) (Entered: 07/08/2013)
174 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Amber C. Trzinski dated 7/2/2013 re: We represent Plaintiffs in the above−referenced Title VII putative class action. We are in receipt of Census's letter dated July 2, 2013, and write to respectfully request permission to submit a response to the letter no later than July 9, 2013. ENDORSEMENT: APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 7/3/2013) (djc) (Entered: 07/08/2013)
175 SEALED DOCUMENT placed in vault.(nm) (Entered: 07/08/2013)
176 MEMORANDUM OF LAW in Support re: 166 MOTION to Certify Class. CORRECTED. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 07/08/2013)
177 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 7/9/2013 re: We represent Plaintiffs in the above−referenced Title VII putative class action. On July 2, 2013, your Honor granted Plaintiffs permission to file certain documents to be submitted with their motion for class certification under seal. (ECF No. 172). When the documents were placed under seal with the Court, Exhibit 33 was inadvertently missing one page. We write to respectfully request that the Court grant Plaintiffs permission to file a correct copy of Exhibit 33, which contains all pages. The corrected document is enclosed for the Court's review. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 7/10/2013) (djc) (Entered: 07/11/2013)
178 SEALED DOCUMENT placed in vault.(nm) (Entered: 07/12/2013)
179 ORDER. It is hereby ORDERED that the settlement conference scheduled in the above−captioned action for July 15, 2013, at 10:00 A.M. has been converted to a phone conference. The parties are directed to jointly call chambers at (212) 805−0204 at the stipulated time, with all parties on the line. Any requests for adjournment of this scheduled conference must be in writing, with copies to all other parties, and must be preceded by reasonable efforts by the requesting party to obtain the consent of those parties. (Telephone Conference set for 7/15/2013 at 10:00 AM before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 7/11/2013) Copies Sent By Chambers via Fax and

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 40 of 59

07/31/2013 07/31/2013
08/07/2013 08/09/2013 08/14/2013
08/15/2013 08/29/2013 09/11/2013

Mail. (rjm) (Entered: 07/12/2013)
180 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 7/31/2013 re: Defendant completed the production of FBI rap sheets and provided the necessary codes to match applicants with rap sheets on June 24, 2013. Dr. Bendick expeditiously analyzed the date and on July 19, 2013 Plaintiffs provided Defendant with a supplemental declaration. Plaintiffs request permission to file this supplemental expert declaration in support of their motion for class certification. ENDORSEMENT: APPLICATION GRANTED.(Signed by Magistrate Judge Frank Maas on 7/31/2013) (djc) (Entered: 08/01/2013)
181 REVISED SCHEDULING ORDER: Plaintiffs' Class Certification Motion due by 6/28/2013. Defendant's Responses due by 9/13/2013. Plaintiffs' Replies due by 10/25/2013. Deposition of Plaintiffs' expert economist will occur on August 28, 2013. Deposition of Defendant's expert statistician due by 10/15/2013. Deposition of Plaintiffs' expert industrial/organizational psychologist will occur on August 30, 2013. Deposition of Defendant's expert Criminologist will occur on October 11, 2013. Deposition of Defendant's expert industrial/organizational psychologist wi11 occur on September 30, 2013. Discovery as to liability due by 10/25/2013. (Signed by Magistrate Judge Frank Maas on 7/30/2013) (djc) Modified on 8/1/2013 (djc). (Entered: 08/01/2013)
182 DECLARATION of Marc Bendick, JR., Ph.D. in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Miazad, Ossai) (Entered: 08/07/2013)
183 ORDER: I have reviewed, albeit belatedly, the case law cited by both sides in their letters regarding Census's request to move for summary judgment, or, in the alternative, to dismiss the Plaintiffs' claims pursuant to Rule 12(b)(1), for lack of standing. Accordingly, because it does not appear that Census would be able to show that no named plaintiff could prosecute this case on behalf of the putative class, for the Court to entertain a dispositive motion at this juncture −while the class certification motion is being briefed would be pointless. The request to file such a motion therefore is denied, as is the request for a pre−motion conference. (Signed by Magistrate Judge Frank Maas on 8/9/2013) (rsh) (Entered: 08/09/2013)
184 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 8/14/2013 re: We represent Plaintiffs in the above−referenced Title VII putative class action. We filed the Supplemental Declaration of Marc Bendick, Jr., Ph.D. in support of Plaintiffs' motion for class certification on August 7, 2013. We write to respectfully request that the Court approve certain documents subject to the parties' Protective Order be filed under seal. These documents contain the names of job applicants who were flagged by the Government with a criminal history. Currently, the documents that your Honor has not yet approved to be filed under seal have been filed with placeholders. Plaintiffs have enclosed descriptions of the documents at issue. ENDORSEMENT: APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 8/14/2013) (djc) (Entered: 08/15/2013)
185 SEALED DOCUMENT placed in vault.(nm) (Entered: 08/15/2013)
186 ORDER. It is hereby ORDERED that a settlement conference has been scheduled in the above−captioned action on WEDNESDAY, NOVEMBER 13, 2013 at 10:00 A.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312, and as further set forth. (Settlement Conference set for 11/13/2013 at 10:00 AM in Courtroom 17D, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 8/29/2013) Copies Sent By Chambers via Fax and Mail. (rjm) (Main Document 186 replaced on 8/29/2013) (rjm). (Entered: 08/29/2013)
187 LETTER addressed to Magistrate Judge Frank Maas from Louis Pellegrino dated 9/11/2013 re: scheduling order. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 09/11/2013)

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09/11/2013
09/12/2013
09/24/2013 09/25/2013 10/01/2013 10/21/2013 10/22/2013
10/23/2013 10/23/2013

188 ORDER: Accordingly, the parties should confer regarding a schedule to complete the class certification motion briefing in a timely fashion, as well as a schedule for the proposed summary judgment motion. If counsel are able to agree on dates, they should submit a proposed scheduling order to me. If counsel are unable to agree, they should submit a single letter containing their dueling scheduling recommendations. To ensure that this case continues to move forward, counsel are directed to make their scheduling submission to me by September 24, 2013. (Signed by Magistrate Judge Frank Maas on 9/11/2013) (lmb) (Entered: 09/11/2013)
189 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Louis A. Pellegrino dated 9/11/2013 re: In light of these issues, the parties respectfully request a brief delay in the schedule to allow the parties' experts to complete their analyses, which would in turn effectuate an orderly presentation of the evidence to the Court on class certification issues. If the Court accepts this proposal, the Government's class certification opposition and expert reports would be due on September 27, 2013 and Plaintiffs' Reply would be due on November 22, 2013, and the remaining schedule would be adjusted accordingly, as reflected in the attached proposed order. ENDORSEMENT: I assume that this agreed modification can be addressed as part of the submission I yesterday asked counsel to make by 9/24/13. (Signed by Magistrate Judge Frank Maas on 9/12/2013) (djc) Modified on 9/12/2013 (djc). (Entered: 09/12/2013)
190 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated 9/24/2013 re: revised schedule. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 09/24/2013)
191 SCHEDULING ORDER: Good cause having been shown, the Court adopts the following revised scheduling order: Motions due by 11/29/2013. Responses due by 1/21/2014 Replies due by 2/21/2014. Expert Discovery due by 10/11/2013. Discovery due by 1/21/2014. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 9/25/2013) (ama) (Entered: 09/26/2013)
192 STANDING ORDER M10−468: Stay of Certain Civil Cases Pending the Restoration of Department of Justice Funding. (Signed by Judge Loretta A. Preska on 10/1/2013) ***Original Standing Order docketed in case no. 1:13−mc−00334−LAP, document no. 2 on 10/1/2013.***(tro) (Entered: 10/01/2013)
193 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated October 21, 2013 re: Revised Scheduling Order in Light of Shutdown. Document filed by Gary Locke. (Attachments: # 1 Text of Proposed Order Revised Scheduling Order)(La Morte, Tara) (Entered: 10/21/2013)
194 SCHEDULING ORDER: Discovery as to liability shall be completed by November 8, 2013. The parties shall meet and confer and submit to the Court an updated proposed scheduling order within 10 days of a ruling on Plaintiffs' motion for class certification. Motion for Class Certification: Defendant's Opposition to Plaintiffs' Motion for Class Certification shall be filed by October 28, 2013. Plaintiffs' Reply Memorandum of Law in Support of Plaintiffs' Motion for Class Certification shall be filed by December 23, 2013. Defendant's Motion for Summary Judgment on Standing: Discovery as to Defendant's Motion for Summary Judgment on Standing shall be completed by February 6, 2014. Defendant shall file its Motion for Summary Judgment on Standing by December 16, 2013. Plaintiffs shall file their Opposition to Defendant's Motion for Summary Judgment on Standing by February 6, 2014. Defendant shall file its Reply in Support of Defendant's Motion for Government Summary Judgment on Standing by March 10, 2014. (Motions due by 12/16/2013. Responses due by 2/6/2014 Replies due by 3/10/2014. Discovery due by 2/6/2014). (Signed by Magistrate Judge Frank Maas on 10/22/2013) (djc) (Entered: 10/23/2013)
195 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated October 23, 2013 re: Request to Extend Page Limit. Document filed by Rebecca M. Blank.(La Morte, Tara) (Entered: 10/23/2013)
196 MEMO ENDORSEMENT on re: 195 Letter filed by Rebecca M. Blank. ENDORSEMENT: Application granted. So ordered. (Signed by Magistrate Judge

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10/25/2013
10/28/2013
10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013
10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/31/2013

Frank Maas on 10/23/2013) (mro) (Entered: 10/24/2013)
197 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated October 25, 2013 re: Permission to File a Second Supplemental Expert Declaration by Dr. Marc Bendick, Jr.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 10/25/2013)
198 MEMO ENDORSEMENT on re: 197 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 10/25/2013) (djc) (Entered: 10/28/2013)
199 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated 10/28/2013 re: re sealing exhibits. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 10/28/2013)
200 DECLARATION of S. Bushway in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit A)(Pellegrino, Louis) (Entered: 10/28/2013)
201 DECLARATION of B. Siskin in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (Pellegrino, Louis) (Entered: 10/28/2013)
202 DECLARATION of J. Outtz in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (Pellegrino, Louis) (Entered: 10/28/2013)
203 MEMORANDUM OF LAW in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (La Morte, Tara) (Entered: 10/28/2013)
204 DECLARATION of Tara M. La Morte in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41)(La Morte, Tara) (Entered: 10/28/2013)
205 DECLARATION of Viola Lewis Willis in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit A−H (placeholder), # 2 Exhibit I)(La Morte, Tara) (Entered: 10/28/2013)
206 DECLARATION of Sandra J. Patterson in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit A−P (placeholder))(La Morte, Tara) (Entered: 10/28/2013)
207 MOTION in Limine. Document filed by Rebecca M. Blank.(Onozawa, Tomoko) (Entered: 10/28/2013)
208 MEMORANDUM OF LAW in Support re: 207 MOTION in Limine.. Document filed by Rebecca M. Blank. (Onozawa, Tomoko) (Entered: 10/28/2013)
209 DECLARATION of Tomoko Onozawa in Support re: 207 MOTION in Limine.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Onozawa, Tomoko) (Entered: 10/28/2013)
210 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated October 31, 2013 re: Opposition to Defendant's Request to File Document Under Seal. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miazad, Ossai) (Entered: 10/31/2013)

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11/04/2013 11/04/2013 11/04/2013
11/04/2013 11/04/2013 11/12/2013
11/15/2013 11/15/2013 11/18/2013 11/18/2013 11/18/2013 12/03/2013 12/03/2013 12/03/2013

211 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated November 4, 2013 re: Filing Adjudication Criteria Under Seal. Document filed by Rebecca M. Blank.(La Morte, Tara) (Entered: 11/04/2013)
212 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated November 4, 2013 re: Filing Adjudication Criteria Under Seal (with attachment). Document filed by Rebecca M. Blank.(La Morte, Tara) (Entered: 11/04/2013)
213 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated November 4, 2013 re: Request for an Extension for Plaintiffs to Respond to Defendant's Motion in Limine to Exclude Certain Evidence. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 11/04/2013)
214 MEMO ENDORSEMENT on re: 213 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 11/4/2013) (djc) (Entered: 11/05/2013)
Set/Reset Deadlines: Responses due by 12/23/2013. Replies due by 1/14/2014. (djc) (Entered: 11/05/2013)
215 ORDER. It is hereby ORDERED that the settlement conference previously scheduled in the above−captioned action for November 13, 2013 has been rescheduled for TUESDAY, FEBRUARY 25, 2014 at 10:00 A.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312, and as further set forth. (Settlement Conference set for 2/25/2014 at 10:00 AM in Courtroom 17D, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 11/8/2013) Copies Sent By Chambers. (rjm) (Entered: 11/12/2013)
216 DECLARATION of Marc Bendick, JR., Ph.D. in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miazad, Ossai) (Entered: 11/15/2013)
217 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated November 15, 2013 re: Request to File Exhibit Under Seal. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 11/15/2013)
218 MEMO ENDORSEMENT on re: 217 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 11/18/2013) (djc) (Entered: 11/18/2013)
Transmission to Sealed Records Clerk. Transmitted re: 218 Memo Endorsement, to the Sealed Records Clerk for the sealing or unsealing of document or case. (djc) (Entered: 11/18/2013)
219 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/19/2013)
220 LETTER addressed to Magistrate Judge Frank Maas from N. Kuehler dated July 2, 2013 re: motion for summary judgment. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 12/03/2013)
221 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated July 10, 2013 re: motion for summary judgment. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 12/03/2013)
222 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated 8/20/2013 re: motion for summary judgment. Document filed by Rebecca M.

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12/09/2013 12/09/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013
12/17/2013
12/17/2013
12/18/2013
12/18/2013
12/18/2013 12/23/2013 12/23/2013

Blank.(Pellegrino, Louis) (Entered: 12/03/2013)
223 LETTER MOTION for Leave to File Excess Pages on Consent addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated December 9, 2013. Document filed by Rebecca M. Blank.(La Morte, Tara) (Entered: 12/09/2013)
224 ORDER: granting 223 Letter Motion for Leave to File Excess Pages. APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 12/9/2013) (djc) (Entered: 12/09/2013)
225 MOTION to Dismiss for Lack of Jurisdiction. Document filed by Rebecca M. Blank. Responses due by 2/6/2014(Onozawa, Tomoko) (Entered: 12/16/2013)
226 MEMORANDUM OF LAW in Support re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Rebecca M. Blank. (Onozawa, Tomoko) (Entered: 12/16/2013)
227 DECLARATION of Viola Lewis Willis in Support re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit A−Part 1, # 2 Exhibit A−Part 2)(Onozawa, Tomoko) (Entered: 12/16/2013)
228 DECLARATION of Tomoko Onozawa in Support re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Onozawa, Tomoko) (Entered: 12/16/2013)
229 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated December 17, 2013 re: Request for a Page Limit Extension for Plaintiffs' Reply in Support of Motion for Class Certification. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A)(Miazad, Ossai) (Entered: 12/17/2013)
230 COUNTER LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated December 17, 2013 re: Census's Objection to Plaintiffs' Request for Page Limit Extension for Plaintiffs' Reply in Support of Plaintiffs' Motion for Class Certification. Document filed by Rebecca M. Blank.(La Morte, Tara) (Entered: 12/17/2013)
231 LETTER REPLY to Response to Motion addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 12/18/2013 re: 223 LETTER MOTION for Leave to File Excess Pages on Consent addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated December 9, 2013.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 12/18/2013)
232 MEMO ENDORSEMENT on re: 229 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: The page limit for the reply is expanded, despite The Defendants objection, to thirty − pages. The deadline for its submission is extended to 12/24. (Signed by Magistrate Judge Frank Maas on 12/18/2013) (djc) Modified on 12/18/2013 (djc). (Entered: 12/18/2013)
Set/Reset Deadlines: Replies due by 12/24/2013. (djc) (Entered: 12/18/2013)
233 MEMORANDUM OF LAW in Opposition re: 207 MOTION in Limine.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 12/23/2013)
234 DECLARATION of Ossai Miazad in Opposition re: 207 MOTION in Limine.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Miazad, Ossai) (Entered: 12/23/2013)

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12/24/2013 12/24/2013
01/08/2014 01/09/2014 01/10/2014 01/14/2014 01/15/2014 01/15/2014 02/04/2014
02/05/2014 02/05/2014 02/05/2014 02/10/2014 02/10/2014

235 REPLY MEMORANDUM OF LAW in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 12/24/2013)
236 DECLARATION of Ossai Miazad in Support re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit 107, # 2 Exhibit 108, # 3 Exhibit 109, # 4 Exhibit 110, # 5 Exhibit 111, # 6 Exhibit 112, # 7 Exhibit 113, # 8 Exhibit 114, # 9 Exhibit 115, # 10 Exhibit 116, # 11 Exhibit 117, # 12 Exhibit 118, # 13 Exhibit 119, # 14 Exhibit 120, # 15 Exhibit 121)(Miazad, Ossai) (Entered: 12/24/2013)
237 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated January 8, 2014 re: Request Pursuant to Federal Rules 26, 37, and Local Civil Rule 37.2. Document filed by Rebecca M. Blank. (Attachments: # 1 Affidavit Declaration of Tara M. La Morte &Exhibit)(La Morte, Tara) (Entered: 01/08/2014)
238 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 1/9/2014 re: Response to Defendant's January 8, 2014 letter. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 01/09/2014)
239 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated January 10, 2014 re: Defendant's Reply Letter Pursuant to Federal Rules 26, 37, and Local Civil Rule 37.2. Document filed by Rebecca M. Blank.(La Morte, Tara) (Entered: 01/10/2014)
240 REPLY MEMORANDUM OF LAW in Support re: 207 MOTION in Limine.. Document filed by Gary Locke. (Onozawa, Tomoko) (Entered: 01/14/2014)
241 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated January 15, 2014 re: Seeking the Court's Guidance re: Meet and Confer. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 01/15/2014)
242 MEMO ENDORSEMENT on re: 241 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: The request for a conference is DENIED. (Signed by Magistrate Judge Frank Maas on 1/15/2014) (djc) (Entered: 01/15/2014)
243 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated February 4, 2014 re: Request for Brief Extension for Plaintiffs' Opposition to Defendant's Motion to Dismiss (ECF No. 225). Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 02/04/2014)
244 MEMO ENDORSEMENT on re: 243 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 2/5/2014) (djc) (Entered: 02/05/2014)
Set/Reset Deadlines: Replies due by 3/14/2014. (djc) (Entered: 02/05/2014)
Set/Reset Deadlines: Responses due by 2/10/2014 (djc) (Entered: 02/06/2014)
245 LETTER addressed to Magistrate Judge Frank Maas from Adam T. Klein dated February 10, 2014 re: Request to File Under Seal Certain Documents. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 02/10/2014)
246 MEMORANDUM OF LAW in Opposition re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Precious Daniels, Scotty Desphy, Anthony

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 46 of 59

02/10/2014
02/11/2014 02/11/2014 02/12/2014 02/13/2014 02/14/2014 02/20/2014 02/21/2014 02/21/2014 03/11/2014 03/12/2014 03/14/2014 03/14/2014

Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 02/10/2014)
247 DECLARATION of Ossai Miazad in Opposition re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit 122, # 2 Exhibit 123, # 3 Exhibit 124, # 4 Exhibit 125, # 5 Exhibit 126, # 6 Exhibit 127, # 7 Exhibit 128, # 8 Exhibit 129, # 9 Exhibit 130, # 10 Exhibit 131, # 11 Exhibit 132, # 12 Exhibit 133, # 13 Exhibit 134, # 14 Exhibit 135, # 15 Exhibit 136, # 16 Exhibit 137, # 17 Exhibit 138, # 18 Exhibit 139, # 19 Exhibit 140, # 20 Exhibit 141, # 21 Exhibit 142, # 22 Exhibit 143, # 23 Exhibit 144, # 24 Exhibit 145, # 25 Exhibit 146, # 26 Exhibit 147, # 27 Exhibit 148, # 28 Exhibit 149, # 29 Exhibit 150, # 30 Exhibit 151, # 31 Exhibit 152, # 32 Exhibit 153, # 33 Exhibit 154, # 34 Exhibit 155, # 35 Exhibit 156, # 36 Exhibit 157, # 37 Exhibit 158, # 38 Exhibit 159, # 39 Exhibit 160)(Miazad, Ossai) (Entered: 02/10/2014)
248 MEMO ENDORSEMENT on re: 245 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 2/11/2014) (lmb) (Entered: 02/11/2014)
Transmission to Sealed Records Clerk. Transmitted re: 248 Memo Endorsement, to the Sealed Records Clerk for the sealing or unsealing of document or case. (lmb) (Entered: 02/11/2014)
249 LETTER addressed to Magistrate Judge Frank Maas from Adam T. Klein dated February 12, 2014 re: Request to File Additional Document under Seal. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 02/12/2014)
250 MEMO ENDORSEMENT on re: 249 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Frank Maas on 2/13/2014) (lmb) (Entered: 02/13/2014)
251 SEALED DOCUMENT placed in vault.(mps) (Entered: 02/14/2014)
252 LETTER addressed to Magistrate Judge Michael H. Dolinger from L. Pellegrino dated 2/20/2014 re: settlement conference. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 02/20/2014)
253 MEMO ENDORSEMENT on re: 252 Letter filed by Rebecca M. Blank. ENDORSEMENT: The settlement conference is adjourned to May 23, 2014 at 10:00 a.m. (Signed by Magistrate Judge Michael H. Dolinger on 2/20/2014) Copies Faxed By Chambers. (jar) (Entered: 02/21/2014)
Set/Reset Hearings: Settlement Conference set for 5/23/2014 at 10:00 AM before Magistrate Judge Michael H. Dolinger. (jar) Modified on 2/21/2014 (jar). (Entered: 02/21/2014)
254 LETTER MOTION for Leave to File Excess Pages for the Defendant's reply brief in further support of its 12(b)(1) motion addressed to Magistrate Judge Frank Maas from AUSA Tomoko Onozawa dated March 11, 2014. Document filed by Rebecca M. Blank.(Onozawa, Tomoko) (Entered: 03/11/2014)
255 ORDER granting 254 Letter Motion for Leave to File Excess Pages. Application granted. (Signed by Magistrate Judge Frank Maas on 3/12/2014) (lmb) (Entered: 03/12/2014)
256 REPLY MEMORANDUM OF LAW in Support re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Rebecca M. Blank. (Onozawa, Tomoko) (Entered: 03/14/2014)
257 DECLARATION of Viola Lewis Willis in Support re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Rebecca M. Blank. (Attachments: # 1

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03/17/2014 03/19/2014 05/14/2014 05/15/2014 05/15/2014 05/29/2014 06/09/2014 07/01/2014
07/01/2014 07/08/2014

Exhibit A−B, # 2 Exhibit C)(Onozawa, Tomoko) (Entered: 03/14/2014)
258 MEMO ENDORSEMENT on re: 199 Letter filed by Rebecca M. Blank. ENDORSEMENT: Application granted. So ordered. (Signed by Magistrate Judge Frank Maas on 3/17/2014) (lmb) (Entered: 03/17/2014)
259 SEALED DOCUMENT placed in vault.(mps) (Entered: 03/20/2014)
260 LETTER addressed to Magistrate Judge Michael H. Dolinger from L. Pellegrino dated 5/14/2014 re: settlement conference. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 05/14/2014)
261 ORDER: In view of defense counsel's May 14, 2014 letter to the court, it is hereby ORDERED that the settlement conference is adjourned sine die. SO ORDERED. (Signed by Magistrate Judge Michael H. Dolinger on 5/15/2014) Copies Faxed By Chambers. (kgo) (Entered: 05/15/2014)
262 NOTICE of Supplemental Authority re: 166 MOTION to Certify Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 05/15/2014)
263 RESPONSE re: 262 Notice (Other) Response to Plaintiffs' Notice of Supplemental Authority. Document filed by Rebecca M. Blank. (La Morte, Tara) (Entered: 05/29/2014)
264 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated June 9, 2014 re: Defendant's Letter Dated May 29, 2014. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 06/09/2014)
265 MEMORANDUM DECISION AND ORDER granting in part and denying in part 166 Motion to Certify Class; denying 207 Motion in Limine; granting in part and denying in part 225 Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth above, the Census Bureau's motion to dismiss for lack of subject matter jurisdiction, (ECF No. 225), and the Plaintiffs' motion for class certification, (ECF No. 166), are both GRANTED in part and DENIED in part. In addition, because Dr. Lundquist's expert report was not necessary to resolve the motion for class certification, the Census Bureau's motion to exclude her report for that purpose is denied as moot. (ECF No. 207). To summarize, my rulings on the Census Bureau's motion to dismiss and the Plaintiffs' motion for class certification are as follows: 1. Plaintiffs Gonzalez, Riesco, and Kargbo lack standing and are dismissed from this case. 2. The Plaintiffs' class shall be limited to African−American applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by the Census Bureau's 30−day Letter, its Adjudication Criteria, or both. The class shall not include Latino applicants. If the Plaintiffs are able to identify a suitable Latino class representative, they may move to amend the Second Amended Complaint and the class certification order. 3. The Plaintiffs' class shall be certified under Rule 23 (b)(2) for purposes of determining liability and affording injunctive relief, but shall not be certified for purposes of resolving damages. 4. Plaintiffs Houser, Daniels, Rickett−Samuels, Scott, and Desphy shall be designated as class representatives. The Plaintiffs' current counsel shall be appointed as class counsel. (Signed by Magistrate Judge Frank Maas on 7/1/2014) (lmb) (Entered: 07/01/2014)
339 INTERNET CITATION NOTE: Material from decision with Internet citation re: 265 Order on Motion to Certify Class, Order on Motion in Limine, Order on Motion to Dismiss/Lack of Jurisdiction. (Attachments: # 1 Citation 1, # 2 Citation 2) (vf) (Entered: 12/22/2015)
266 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated July 8, 2014 re: Request for One−Week Extension to Submit Proposed Scheduling Order. Document filed by Rebecca M. Blank.(La Morte, Tara) (Entered: 07/08/2014)

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 48 of 59

07/08/2014 07/15/2014
07/15/2014 07/15/2014 07/17/2014 07/18/2014 07/18/2014
07/21/2014
07/21/2014 07/21/2014 07/21/2014
07/23/2014 07/29/2014 07/29/2014

267 MEMO ENDORSEMENT on re: 266 Letter filed by Rebecca M. Blank. ENDORSEMENT: No problem! (Signed by Magistrate Judge Frank Maas on 7/8/2014) (rjm) (Entered: 07/09/2014)
268 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated July 15, 2014 re: Motion for Reconsideration of the Court's July 1, 2014 Memorandum Decision and Order. Document filed by Rebecca M. Blank. (Attachments: # 1 Notice of Motion, # 2 Memorandum of Law)(La Morte, Tara) (Entered: 07/15/2014)
269 MOTION for Reconsideration of the Court's July 1, 2014, Memorandum Decision and Order. Document filed by Rebecca M. Blank. Return Date set for 7/29/2014 at 11:59 PM.(La Morte, Tara) (Entered: 07/15/2014)
270 MEMORANDUM OF LAW in Support re: 269 MOTION for Reconsideration of the Court's July 1, 2014, Memorandum Decision and Order. . Document filed by Rebecca M. Blank. (La Morte, Tara) (Entered: 07/15/2014)
271 MEMO ENDORSEMENT on re: 268 Letter, filed by Rebecca M. Blank. ENDORSEMENT: I look forward to receiving the opposition and reply papers so that I may rule on the application. (Signed by Magistrate Judge Frank Maas on 7/17/2014) (lmb) (Entered: 07/18/2014)
272 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated July 18, 2014 re: the government's Proposed Scheduling Order. Document filed by Rebecca M. Blank. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(La Morte, Tara) (Entered: 07/18/2014)
273 LETTER addressed to Magistrate Judge Frank Maas from Adam T. Klein dated 7/18/2014 re: Plaintiffs' Proposed Schedule. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 07/18/2014)
274 LETTER MOTION for Extension of Time to File Plaintiffs' Opposition to Census' Motion for Reconsideration and Clarification of the July 1, 2014 Court Order and Defendant's Reply addressed to Magistrate Judge Frank Maas from Ossai Miazad dated July 21, 2014. Document filed by Precious Daniels, Scotty Desphy, Evelyn Houser, Felicia Rickett−Samuels, Chynell Scott.(Miazad, Ossai) (Entered: 07/21/2014)
275 ORDER granting 274 Letter Motion for Extension of Time to File. Application granted. So ordered. (Signed by Magistrate Judge Frank Maas on 7/21/2014) (rjm) (Entered: 07/22/2014)
Set/Reset Deadlines: Responses due by 8/12/2014. Replies due by 8/26/2014. (rjm) (Entered: 07/22/2014)
276 MEMO ENDORSEMENT on re: 273 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Counsel are directed to place a conference call to my Chambers to schedule a telephone conference at the earliest feasible date. (Signed by Magistrate Judge Frank Maas on 7/21/2014) (rjm) (Entered: 07/22/2014)
277 ORDER: It is hereby ORDERED that a telephone conference shall be held on July 30, 2014, at 4 p.m. Plaintiffs' counsel shall initiate the call. (Telephone Conference set for 7/30/2014 at 04:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 7/23/2014) (ja) (Entered: 07/23/2014)
278 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated 7/29/2014 re: scheduling conference. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 07/29/2014)
279 MEMO ENDORSEMENT on re: 278 Letter filed by Rebecca M. Blank. ENDORSEMENT: The conference is adjourned to August 26, 2014, at 10 a.m. If this date and time are not workable, counsel should place a conference call to my Chambers 7/29 to reschedule. In the meantime, decision is reserved as to the

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08/06/2014 08/06/2014 08/06/2014 08/07/2014 08/12/2014 08/22/2014 08/25/2014 08/25/2014
08/25/2014 08/26/2014 08/26/2014 08/27/2014 09/09/2014
09/10/2014

certification issue. (Telephone Conference set for 8/26/2014 at 10:00 AM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 7/29/2014) (tro) (Entered: 07/30/2014)
280 LETTER addressed to Magistrate Judge Frank Maas from Louis A. Pellegrino dated August 6, 2014 re: Newly Discovered Selection Certificates. Document filed by Rebecca M. Blank. (Attachments: # 1 Declaration of Richard Liquorie)(La Morte, Tara) (Entered: 08/06/2014)
281 DECLARATION of Richard Liquorie in Opposition re: 166 MOTION to Certify Class.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit Exhibits Placeholder)(La Morte, Tara) (Entered: 08/06/2014)
282 DECLARATION of Richard Liquorie in Support re: 225 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit Exhibits Placeholder)(La Morte, Tara) (Entered: 08/06/2014)
283 NOTICE of Withdrawal of Appearance. Document filed by Precious Daniels, Scotty Desphy, Evelyn Houser, Felicia Rickett−Samuels, Chynell Scott. (Kirkpatrick, Michael) (Entered: 08/07/2014)
284 MEMORANDUM OF LAW in Opposition re: 269 MOTION for Reconsideration of the Court's July 1, 2014, Memorandum Decision and Order. . Document filed by Precious Daniels, Scotty Desphy, Evelyn Houser, Felicia Rickett−Samuels, Chynell Scott. (Miazad, Ossai) (Entered: 08/12/2014)
285 NOTICE OF APPEARANCE by Elizabeth Tulis on behalf of Rebecca M. Blank. (Tulis, Elizabeth) (Entered: 08/22/2014)
286 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated 8/25/2014 re: selection certificate review. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 08/25/2014)
287 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 8/22/2014 re: Plaintiffs request that Ms. Trzinski be withdrawn as attorney of record in the above−captioned matter and that all further electronic notices in the matter to Ms. Trzinski be terminated. ENDORSEMENT: Application granted., Attorney Amber Christine Trzinski terminated. (Signed by Magistrate Judge Frank Maas on 8/25/2014) (lmb) (Entered: 08/25/2014)
288 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated 8/25/2014 re: Update on Status of Proposed Scheduling Order. Document filed by Precious Daniels, Scotty Desphy, Evelyn Houser, Felicia Rickett−Samuels, Chynell Scott.(Miazad, Ossai) (Entered: 08/25/2014)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 8/26/2014. (Chambers, Richalyn) (Entered: 08/26/2014)
289 REPLY MEMORANDUM OF LAW in Support re: 269 MOTION for Reconsideration of the Court's July 1, 2014, Memorandum Decision and Order. . Document filed by Rebecca M. Blank. (Pellegrino, Louis) (Entered: 08/26/2014)
290 ORDER: Pursuant to the telephone conference held on August 26, 2014, it is hereby ORDERED that by September 16, 2014, the parties shall report back to the court on the various issues discussed during the telephone conference. (Signed by Magistrate Judge Frank Maas on 8/26/2014) (lmb) (Entered: 08/27/2014)
291 MOTION for Julie Alyssa Murray to Appear Pro Hac Vice on behalf of Plaintiffs. Filing fee $ 200.00, receipt number 0208−10082354. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Precious Daniels, Scotty Desphy, Evelyn Houser, Felicia Rickett−Samuels, Chynell Scott. (Attachments: # 1 Exhibit Certificates of Good Standing, # 2 Text of Proposed Order Proposed Order Granting Motion to Appear Pro Hac Vice)(Murray, Julie) (Entered: 09/09/2014)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 291 MOTION for Julie Alyssa Murray to Appear Pro Hac Vice on behalf of Plaintiffs. Filing fee $ 200.00, receipt number 0208−10082354.

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 50 of 59

09/15/2014 09/16/2014 09/16/2014 09/16/2014
09/16/2014 09/17/2014
09/19/2014 09/19/2014
09/25/2014 09/30/2014 10/02/2014 10/02/2014

Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (sdi) (Entered: 09/10/2014)
292 NOTICE of Supplemental Authority re: 269 MOTION for Reconsideration of the Court's July 1, 2014, Memorandum Decision and Order.. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit Lopez v. City of Lawrence)(La Morte, Tara) (Entered: 09/15/2014)
293 ORDER granting 291 Motion for Julie A. Murray to Appear Pro Hac Vice (Maas, Frank) (Entered: 09/16/2014)
294 NOTICE OF APPEARANCE by Deirdre Anne Aaron on behalf of Precious Daniels, Scotty Desphy, Evelyn Houser, Felicia Rickett−Samuels, Chynell Scott. (Aaron, Deirdre) (Entered: 09/16/2014)
295 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad dated September 16, 2014 re: Issues Discussed During August 26, 2014 Telephonic Court Conference. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Miazad, Ossai) (Entered: 09/16/2014)
296 LETTER addressed to Magistrate Judge Frank Maas from Elizabeth Tulis, Louis Pellegrino, Tara LaMorte dated September 16, 2014 Document filed by Rebecca M. Blank. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(Tulis, Elizabeth) (Entered: 09/17/2014)
297 MEMO ENDORSEMENT on re: 295 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: On the assumption that the Government will respond to this letter promptly, I would like to hold a telephone conference on 9/22/14 at 5 p.m. If this date and time are not convenient, counsel should place a conference call to Chambers to select a more suitable slot. (Telephone Conference set for 9/22/2014 at 05:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 9/16/2014) (ajs) (Entered: 09/17/2014)
298 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated September 19, 2014 re: Discovery Relating to Selection Certificates. Document filed by Rebecca M. Blank. (Attachments: # 1 Text of Proposed Order)(La Morte, Tara) (Entered: 09/19/2014)
299 NOTICE OF CONFERENCE: Please be advised that the telephone conference in the this matter previously scheduled for September 22, 2014, at 5 p.m. has been rescheduled to October 2, 2014, at 10 a.m. Plaintiffs' counsel shall initiate the call by placing a conference call to Judge Maas' chambers at (212) 805−6727. Requests for adjournment must be made to the Court, in writing, at least 48 hours prior to the conference. Telephone Conference set for 10/2/2014 at 10:00 AM before Magistrate Judge Frank Maas. (lmb) (Entered: 09/19/2014)
300 LETTER addressed to Magistrate Judge Frank Maas from Ossai Miazad re: Defendant's September 19, 2014 Letter. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 09/25/2014)
301 LETTER addressed to Magistrate Judge Frank Maas from Tara M. La Morte dated September 30, 2014 re: Selection Records. Document filed by Rebecca M. Blank. (Attachments: # 1 Exhibit A)(La Morte, Tara) (Entered: 09/30/2014)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 10/2/2014. (Chambers, Richalyn) (Entered: 10/02/2014)
302 ORDER: Pursuant to the telephone conference held on October 2, 2014, it is hereby ORDERED that the third amended class action complaint is accepted for filing. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 10/2/2014) (ja) (Entered: 10/03/2014)

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 51 of 59

10/02/2014 10/03/2014
10/14/2014
10/22/2014
10/22/2014 10/24/2014 10/24/2014 10/24/2014 11/07/2014
11/07/2014

303 ORDER AMENDING THE COURT'S JULY 1, 2014 MEMORANDUM DECISION AND ORDER: Reinstating Mr. Gonzalez as a class representative. (Signed by Magistrate Judge Frank Maas on 10/2/2014) (ja) (Entered: 10/03/2014)
304 ORDER: Pursuant to the telephone conference held on October 2, 2014, it is hereby ORDERED that: Any motion challenging the adequacy or typicality of the newly−named plaintiffs shall be filed by January 18, 2015. Opposition papers shall be filed by March 4, 2015, and any reply shall be filed by April 3, 2015. Expert discovery, including depositions, related to initial expert reports shall be completed by January 16, 2015. All motions for summary judgment shall be filed by June 19, 2015. Opposition papers shall be filed by July 24, 2015, and any replies shall be filed by August 21, 2015, and as further set forth herein. (Deposition due by 3/6/2015. Expert Discovery due by 3/6/2015. Motions due by 6/19/2015, Responses due by 7/24/2015, Replies due by 8/21/2015.) (Signed by Magistrate Judge Frank Maas on 10/3/2014) (ja) (Entered: 10/03/2014)
305 SCHEDULING ORDER: It is hereby ORDERED that a settlement conference has been scheduled in the above−captioned action on TUESDAY, NOVEMBER 18, 2014 at 9:30 A.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312. And as set forth herein. SO ORDERED. Settlement Conference set for 11/18/2014 at 09:30 AM in Courtroom 17D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger. (Signed by Magistrate Judge Michael H. Dolinger on 10/14/2014) Copies to all counsel via ECF. (ama) (Entered: 10/14/2014)
306 TRANSCRIPT of Proceedings re: Telephone Conference held on 8/26/2014 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/17/2014. Redacted Transcript Deadline set for 12/1/2014. Release of Transcript Restriction set for 1/23/2015.(ca) (Entered: 10/22/2014)
307 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Telephone Conference proceeding held on 08/26/2014 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(ca) (Entered: 10/22/2014)
308 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated 10/24/2014 re: re seal filing. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 10/24/2014)
309 MEMO ENDORSEMENT on re: 308 Letter filed by Rebecca M. Blank. ENDORSEMENT: Application granted. So ordered. (Signed by Magistrate Judge Frank Maas on 10/24/2014) (rjm) (Entered: 10/27/2014)
Transmission to Sealed Records Clerk. Transmitted re: 309 Memo Endorsement to the Sealed Records Clerk for the sealing or unsealing of document or case. (rjm) (Entered: 10/27/2014)
310 TRANSCRIPT of Proceedings re: Telephone Conference held on 10/2/2014 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Shari Riemer/Mary Greco, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/4/2014. Redacted Transcript Deadline set for 12/11/2014. Release of Transcript Restriction set for 2/9/2015.(ca) (Entered: 11/07/2014)
311 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Telephone Conference proceeding held on 10/02/2014 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 52 of 59

11/18/2014 11/18/2014
11/18/2014
12/11/2014
12/11/2014 12/22/2014 01/08/2015 01/08/2015 01/08/2015 01/12/2015 02/27/2015

Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(ca) (Entered: 11/07/2014)
Minute Entry for proceedings held before Magistrate Judge Michael H. Dolinger: Settlement Conference held on 11/18/2014. (Snell, Kevin) (Entered: 11/18/2014)
312 SCHEDULING ORDER: A settlement conference having been held in the above−captioned action today, it is hereby ORDERED that a follow−up telephone conference has been scheduled for THURSDAY, DECEMBER 11, 2014 at 10:00 A.M at which time the parties are directed to jointly call chambers at (212) 805−0204 when all parties are on the line. SO ORDERED. Telephone Conference set for 12/11/2014 at 10:00 AM before Magistrate Judge Michael H. Dolinger. (Signed by Magistrate Judge Michael H. Dolinger on 11/18/2014) (ama) (Entered: 11/18/2014)
313 ORDER: I understand from Magistrate Judge Dolinger that the parties are continuing to engage in settlement discussions. To ensure that those discussions can continue without prejudice to either side, I will stay further discovery until such time as Judge Dolinger or the parties indicate to me that it should resume, at which time (unless there is a settlement), I will enter a revised scheduling order. (Signed by Magistrate Judge Frank Maas on 11/18/2014) (kgo) (Entered: 11/18/2014)
314 TRANSCRIPT of Proceedings re: Telephone Conference held on 8/26/2014 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/5/2015. Redacted Transcript Deadline set for 1/15/2015. Release of Transcript Restriction set for 3/16/2015.(soh) (Entered: 12/11/2014)
Minute Entry for proceedings held before Magistrate Judge Michael H. Dolinger: Telephone Conference held on 12/11/2014. (Snell, Kevin) (Entered: 12/11/2014)
315 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated December 22, 2014 re: Status Update re Mediation. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 12/22/2014)
316 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated January 8, 2015 re: Status Update re Mediation. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 01/08/2015)
317 LETTER addressed to Magistrate Judge Frank Maas from L. Pellegrino dated 01/08/2015 re: re motion for reconsideration. Document filed by Rebecca M. Blank.(Pellegrino, Louis) (Entered: 01/08/2015)
318 MEMO ENDORSEMENT on re: 316 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated January 8, 2015 re: Status Update re Mediation. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Ricke tt−Samuels, Ignacio Riesco, Chynell Scott. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Michael H. Dolinger on 1/8/2015) (rjm) (Entered: 01/09/2015)
319 LETTER addressed to Magistrate Judge Frank Maas from Adam T. Klein dated January 12, 2015 re: Response to Defendant's January 8, 2015 Letter. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 01/12/2015)
320 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated February 27, 2015 re: Status Update re Mediation. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian

Case: 1:10-cv-3105 As of: 11/04/2016 01:28 PM EDT 53 of 59

02/27/2015 04/03/2015 04/06/2015 04/30/2015 04/30/2015 06/09/2015 06/10/2015 08/20/2015 08/20/2015 08/28/2015

Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 02/27/2015)
321 MEMO ENDORSEMENT on re: 320 Letter filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. We respectfully request that the Court permit the parties to provide a status update to the Court no later than April 3, 2015. ENDORSEMENT: Application Granted. (Signed by Magistrate Judge Michael H. Dolinger on 2/27/2015) (ama) (Entered: 02/27/2015)
322 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated April 3, 2015 re: Status Update re Mediation. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 04/03/2015)
323 MEMO ENDORSEMENT on re: 322 Letter filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. We respectfully request that the Court permit the parties to provide a status update to the Court no later than April 30, 2015. ENDORSEMENT: Application Granted. (Signed by Magistrate Judge Michael H. Dolinger on 4/06/2015) (ama) (Entered: 04/06/2015)
324 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated April 30, 2015 re: Status Update re Mediation. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 04/30/2015)
325 MEMO ENDORSEMENT on re: 324 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated April 30, 2015 re: Status Update re Mediation. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Ricket t−Samuels, Ignacio Riesco, Chynell Scott. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Michael H. Dolinger on 4/30/2015) (rjm) (Entered: 05/01/2015)
326 LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated 6/9/2015 re: Status Update of Parties' Mediation Efforts. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 06/09/2015)
327 MEMO ENDORSEMENT on re: 326 Letter filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. With the Court's approval, the parties propose to update the Court on August 20, 2015. ENDORSEMENT: Application Granted. (Signed by Magistrate Judge Michael H. Dolinger on 6/10/2015) (ama) (Entered: 06/10/2015)
328 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Ossai Miazad dated 8/20/2015 re: Status Update of Parties' Mediation Efforts. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 08/20/2015)
329 MEMO ENDORSEMENT on re: 328 Letter filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. With the Court's approval, the parties propose to update the Court on October 19, 2015. ENDORSEMENT: Counsel are to submit a status report by October 9, 2015. (Signed by Magistrate Judge Michael H. Dolinger on 8/20/2015) (ama) (Entered: 08/20/2015)
330 SCHEDULING ORDER: It is hereby ORDERED that a telephone conference has been scheduled for TUESDAY, SEPTEMBER 8, 2015 at 11:30 A.M. at which time the parties are directed to jointly call chambers at (212) 805−0204 when all parties are on the line. Any requests for adjournment of this scheduled conference must be in writing, with copies to all other parties, and must be preceded by

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10/09/2015 10/21/2015
12/07/2015 12/07/2015 12/08/2015 12/09/2015 12/09/2015 12/10/2015 01/25/2016 01/26/2016

reasonable efforts by the requesting party to obtain the consent of those parties. SO ORDERED. Telephone Conference set for 9/8/2015 at 11:30 AM before Magistrate Judge Michael H. Dolinger. (Signed by Magistrate Judge Michael H. Dolinger on 8/27/2015) (ama) (Entered: 08/28/2015)
331 JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Ossai Miazad dated 10/9/2015 re: Status Update of Parties' Mediation Efforts. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 10/09/2015)
332 MEMO ENDORSEMENT on re: 331 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Inasmuch as Judge Dolinger is leaving the bench, I will withdraw my informal reference to him (and his successor). Future status updates should be submitted to me, and December 9, 2015, is approved as the date of the next such update. (Signed by Magistrate Judge Frank Maas on 10/21/2015) (lmb) (Entered: 10/21/2015)
333 LETTER addressed to Magistrate Judge Frank Maas from Julie A. Murray dated 12/7/2015 re: Withdrawal of Public Citizen Litigation Group as Co−Counsel. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 12/07/2015)
334 NOTICE of Record of Party's Death. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Miazad, Ossai) (Entered: 12/07/2015)
335 MEMO ENDORSEMENT on re: 333 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Application granted., Attorney Julie Alyssa Murray terminated. (Signed by Magistrate Judge Frank Maas on 12/7/2015) (lmb) (Entered: 12/08/2015)
336 FILING ERROR − DEFICIENT DOCKET ENTRY − (See #337) JOINT LETTER addressed to Magistrate Judge Michael H. Dolinger from Adam T. Klein dated 12/9/2015 re: Status Update of Parties' Mediation Efforts. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) Modified on 12/9/2015 (kj). (Entered: 12/09/2015)
337 JOINT LETTER addressed to Magistrate Judge Frank Maas from Adam T. Klein dated 12/9/2015 re: Status Update of Parties' Mediation Efforts. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 12/09/2015)
338 MEMO ENDORSEMENT on re: 337 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 12/10/2015) (mro) (Entered: 12/10/2015)
340 MOTION to Substitute Party. Old Party: Evelyn Houser, New Party: Cephus O. Houser . Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Miazad, Ossai) (Entered: 01/25/2016)
341 ORDER granting on consent ECF No. 340, plaintiffs' motion to substitute Cephus O. Houser, personal representative and trustee of the revocable living trust agreement of plaintiff Evelyn Houser, as the representative of the interests of plaintiff Evelyn Houser, individually, in this action. (Maas, Frank) (Entered: 01/26/2016)

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02/08/2016 02/25/2016
03/16/2016 03/16/2016 04/08/2016 04/11/2016 04/19/2016 04/19/2016
04/19/2016

342 JOINT LETTER addressed to Magistrate Judge Frank Maas from Adam T. Klein dated 2/8/2016 re: Joint Status Update. Document filed by Sandra Anderson, Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 02/08/2016)
343 ORDER denying without prejudice to renewal 269 Motion for Reconsideration. The defendant's Motion for Reconsideration of this Court's Memorandum Decision and Order of July 1, 2014, (ECF No. 269), remains undecided. By letter dated February 8, 2016, however, the parties have jointly indicated that this action has been resolved, subject to approval of the settlement terms by the United States Department of Justice (See ECF No. 342). In light of this development, the motion is denied without prejudice to its renewal in the event that the settlement is not effectuated. (Signed by Magistrate Judge Frank Maas on 2/24/2016) (cf) (Entered: 02/25/2016)
344 LETTER addressed to Magistrate Judge Frank Maas from Adam Klein dated March 16, 2016 re: Status. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 03/16/2016)
345 MEMO ENDORSEMENT on re: 344 Letter, filed by Evelyn Houser, Ignacio Riesco, Felicia Rickett−Samuels, Vivian Kargbo, Precious Daniels, Scotty Desphy, Chynell Scott, Anthony Gonzalez. ENDORSEMENT: Granted. ( Motions due by 4/12/2016.) (Signed by Magistrate Judge Frank Maas on 3/16/2016) (mro) (Entered: 03/17/2016)
346 LETTER MOTION for Extension of Time addressed to Magistrate Judge Frank Maas from Adam Klein dated April 8, 2016. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Eugene Johnson, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 04/08/2016)
347 ORDER granting 346 Letter Motion for Extension of Time. The extension is granted. Motions due by 4/19/2016. (Signed by Magistrate Judge Frank Maas on 4/11/2016) (cf) (Entered: 04/11/2016)
348 MOTION for Settlement NOTICE OF PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION SETTLEMENT PROCEDURE, AND CONDITIONAL CERTIFICATION FOR DAMAGES OF THE SETTLEMENT CLASS. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Klein, Adam) (Entered: 04/19/2016)
349 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE DOCUMENT #351) − MEMORANDUM OF LAW in Support re: 348 MOTION for Settlement NOTICE OF PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION SETTLEMENT PROCEDURE, AND CONDITIONAL CERTIFICATION FOR DAMAGES OF THE SETTLEM . Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Klein, Adam) Modified on 4/20/2016 (ldi). (Entered: 04/19/2016)
350 DECLARATION of Adam Klein in Support re: 348 MOTION for Settlement NOTICE OF PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION SETTLEMENT PROCEDURE, AND CONDITIONAL CERTIFICATION FOR DAMAGES OF THE SETTLEM. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(Klein, Adam) (Entered: 04/19/2016)

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04/20/2016 04/22/2016
04/22/2016 04/22/2016 04/26/2016 06/06/2016 08/03/2016

351 MEMORANDUM OF LAW in Support re: 348 MOTION for Settlement NOTICE OF PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION SETTLEMENT PROCEDURE, AND CONDITIONAL CERTIFICATION FOR DAMAGES OF THE SETTLEM . Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Cephus Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott. (Klein, Adam) (Entered: 04/20/2016)
352 ORDER GRANTING PLAINTIFFS' MOTION FOR (1) PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (2) CONDITIONAL CERTIFICATION FOR DAMAGES OF THE SETTLEMENT CLASS (3) APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION SETTLEMENT PROCEDURE (3) AND (4) SETTING OF A SCHEDULE FOR FINAL APPROVAL: granting 348 Motion for Settlement. NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: This Court has jurisdiction over the subject matter of the litigation and over all parties to this litigation, including all members of the Settlement Class, as defined below. The Court hereby FINDS and CONCLUDES that, for purposes of this settlement, the Settlement Class set forth above satisfies all of the requirements for certification under Rule 23(a) and Rule 23(b)(3). There are hundreds of thousands of Settlement Class Members, satisfying the numerosity requirement. The Court has reviewed the proposed Settlement Agreement and Release ("Settlement Agreement"), attached as Exhibit 1 to the Klein Declaration (Klein Decl.) and Plaintiffs' unopposed Motion for Preliminary Approval and the Klein Declaration which describes Class Counsel's legal and factual investigation, and the settlement process. It is therefore ORDERED: That the Settlement Agreement is hereby PRELIMINARY APPROVED. Final approval and entry of the Settlement Agreement is subject to a final hearing of any objections of members of the class to the proposed Settlement Agreement. Accordingly, the Court hereby ORDERS as follows: The form of the Notice and Claim Form is approved. Non−material changes may be made as the parties deem appropriate. The manner for distributing the Notice and Claim Form is approved. The proposed Privacy Act Protective Order is So Ordered. Within fourteen (14) business days following entry of this Order, Defendant, to the extent that said information was originally provided by the Settlement ClassMember to the Census Bureau, shall provide the settlement administrator the name, Social Security number, self−reported email addresses, last known address, and last known phone number of each Settlement Class Member. The Court hereby schedules a hearing to determine whether to grant final certification of the Settlement Class, and final approval of the Settlement Agreement (includingthe proposed plan of programmatic and class member relief: payment of attorneys' fees and costs, and Service Awards to the Named Plaintiffs) (the "Final Approval Hearing") for September 19, 2016, at 10 a.m., in Courtroom 20A. And as set forth herein. IT IS SO ORDERED. (Signed by Magistrate Judge Frank Maas on 4/22/2016) (ama) (Entered: 04/25/2016)
Set/Reset Hearings: Settlement Conference set for 9/19/2016 at 10:00 AM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas. (ama) (Entered: 04/25/2016)
Terminate Transcript Deadlines (ama) (Entered: 04/25/2016)
353 PRIVACY ACT PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...(As further set forth in this Order.) IT IS HEREBY ORDERED that defendant and her counsel are authorized to release to class counsel, and any other individual or entity contemplated by the parties' Settlement Agreement and Release ("Settlement Agreement"), records or other information necessary for the defendant to satisfy her obligations under the Settlement Agreement filed in this action on April 19, 2016. (Signed by Magistrate Judge Frank Maas on 4/25/2016) (cf) (Entered: 04/26/2016)
354 LETTER from Theodis Brown, Sr. dated 5/18/2016 re: Pro−se Litigent formal written objections. (cf) (Entered: 06/06/2016)
355 LETTER addressed to Magistrate Judge Frank Maas from George L. Mathieu dated 7/26/2016 re: Opting out of the Census Settlement. (cf) (Entered:

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08/03/2016)
356 LETTER from Casey Manzanares, non−party, dated 7/25/16 re: IMPORTANT NOTICE OF SETTLEMENT PAY/ NOTICE PIN# 0007673641. (sc) (Entered: 08/11/2016)
357 LETTER MOTION for Leave to File Excess Pages addressed to Magistrate Judge Frank Maas from Ossai Miazad dated August 30, 2016. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Evelyn Houser, Vivian Kargbo, Felicia Rickett−Samuels, Ignacio Riesco, Chynell Scott.(Miazad, Ossai) (Entered: 08/30/2016)
358 ORDER granting 357 Letter Motion for Leave to File Excess Pages. APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 8/30/2016) (cf) (Entered: 08/30/2016)
359 NOTICE OF CHANGE OF ADDRESS by Adam T Klein on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Klein, Adam) (Entered: 08/31/2016)
360 NOTICE OF CHANGE OF ADDRESS by Deirdre Anne Aaron on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Aaron, Deirdre) (Entered: 08/31/2016)
361 NOTICE OF CHANGE OF ADDRESS by Justin Mitchell Swartz on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Swartz, Justin) (Entered: 08/31/2016)
362 NOTICE OF CHANGE OF ADDRESS by Lewis M. Steel on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Steel, Lewis) (Entered: 08/31/2016)
363 NOTICE OF CHANGE OF ADDRESS by Melissa E. Pierre−Louis on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Pierre−Louis, Melissa) (Entered: 09/01/2016)
364 NOTICE OF CHANGE OF ADDRESS by Ossai Miazad on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Miazad, Ossai) (Entered: 09/01/2016)
365 NOTICE OF CHANGE OF ADDRESS by Rachel Megan Bien on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Bien, Rachel) (Entered: 09/01/2016)
366 NOTICE OF CHANGE OF ADDRESS by Sally Jasmine Abrahamson on behalf of Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. New Address: Outten &Golden LLP, 685 Third Avenue, 25th Floor, New York, New York, United States 10017, 2122451000. (Abrahamson, Sally) (Entered: 09/01/2016)
367 MOTION for Settlement Notice of Plaintiffs' Unopposed Motion for Final Approval of Settlement and Certification for Damages of the Settlement Class. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott.(Miazad, Ossai) (Entered: 09/02/2016)

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368 MEMORANDUM OF LAW in Support re: 367 MOTION for Settlement Notice of Plaintiffs' Unopposed Motion for Final Approval of Settlement and Certification for Damages of the Settlement Class. . Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. (Miazad, Ossai) (Entered: 09/02/2016)
369 MOTION for Attorney Fees Notice of Plaintiffs' Unopposed Motion for Attorneys Fees and Costs. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott.(Miazad, Ossai) (Entered: 09/02/2016)
370 MEMORANDUM OF LAW in Support re: 369 MOTION for Attorney Fees Notice of Plaintiffs' Unopposed Motion for Attorneys Fees and Costs. . Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. (Miazad, Ossai) (Entered: 09/02/2016)
371 MOTION Notice of Plaintiffs' Unopposed Motion for Class Representative Service Awards . Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott.(Miazad, Ossai) (Entered: 09/02/2016)
372 MEMORANDUM OF LAW in Support re: 371 MOTION Notice of Plaintiffs' Unopposed Motion for Class Representative Service Awards . . Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. (Miazad, Ossai) (Entered: 09/02/2016)
373 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE DOCUMENT #378) − DECLARATION of Ossai Miazad in Support re: 369 MOTION for Attorney Fees Notice of Plaintiffs' Unopposed Motion for Attorneys Fees and Costs., 367 MOTION for Settlement Notice of Plaintiffs' Unopposed Motion for Final Approval of Settlement and Certification for Damages of the Settlement Class., 371 MOTION Notice of Plaintiffs' Unopposed Motion for Class Representative Service Awards .. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Miazad, Ossai) Modified on 9/28/2016 (ldi). (Entered: 09/02/2016)
374 DECLARATION of Abigail Schwartz in Support re: 367 MOTION for Settlement Notice of Plaintiffs' Unopposed Motion for Final Approval of Settlement and Certification for Damages of the Settlement Class.. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Miazad, Ossai) (Entered: 09/16/2016)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Fairness Hearing held on 9/19/2016. (mo) (Entered: 09/19/2016)
375 LETTER addressed to Magistrate Judge Frank Maas from Daniel L Williams dated 9/7/2016 re: Objection to the proposed settlement. (cf) (Entered: 09/19/2016)
376 ORDER: For the reasons set forth on the record earlier today, Exhibit F to Ms. Miazad's declaration dated September 2, 2016 (ECF No. 373−6), shall be placed under seal since a properly−redacted version has been filed as Exhibit 1 to the declaration of Abigail Schwartz, dated September 16, 2016 (ECF No. 374−1). (Signed by Magistrate Judge Frank Maas on 9/19/2016) (cf) (Entered: 09/19/2016)
Transmission to Sealed Records Clerk. Transmitted re: 376 Order to the Sealed Records Clerk for the sealing or unsealing of document or case. (cf) (Entered: 09/19/2016)
377 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTIONS FOR FINAL APPROVAL OF SETTLEMENT AND CERTIFICATION FOR DAMAGES OF THE SETTLEMENT CLASS, ATTORNEYS' FESS AND COST, AND SERVICE AWARDS. granting 367 Motion for Settlement; granting 369 Motion for Attorney Fees; granting 371 Motion. This Court hereby dismisses this action with prejudice as to all Settlement Class Members. (As further set forth in this Order.) As of the Effective Date of the Settlement, the action shall automatically be dismissed with

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prejudice, except that the Court will retain continuing jurisdiction as set forth in paragraph 30 above. (Signed by Magistrate Judge Frank Maas on 9/20/2016) (cf) Modified on 10/13/2016 (cf). (Entered: 09/20/2016)
378 DECLARATION of Ossai Miazad in Support re: 369 MOTION for Attorney Fees Notice of Plaintiffs' Unopposed Motion for Attorneys Fees and Costs., 367 MOTION for Settlement Notice of Plaintiffs' Unopposed Motion for Final Approval of Settlement and Certification for Damages of the Settlement Class., 371 MOTION Notice of Plaintiffs' Unopposed Motion for Class Representative Service Awards .. Document filed by Precious Daniels, Scotty Desphy, Anthony Gonzalez, Felicia Rickett−Samuels, Chynell Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Miazad, Ossai) (Entered: 09/27/2016)
379 STIPULATION AND ORDER REGARDING ADDITIONAL SETTLEMENT EXCLUSIONS: NOW, THEREFORE, IT IS HERBY STIPULATED AND AGREED, by and between the undersigned, that Exhibit A to this Stipulation is hereby incorporated as Exhibit A to the Final Approval Order, and that all individuals listed in Exhibit A to this Stipulation shall be deemed to have timely excluded themselves from the Settlement in this matter, as set forth in Paragraphs 31 and 32 of the Final Approval Order. (As further set forth in this Order.) (Signed by Magistrate Judge Frank Maas on 9/29/2016) (cf) (Entered: 09/29/2016)

 
 Press
Source: Outten & Golden LLP
U.S. Census Bureau Sued for Hiring Discrimination, According to Outten & Golden LLP and Co-Counsel
NEW YORK, April 13, 2010 /PRNewswire/ -- Thousands of African Americans, Latinos, and Native Americans have been rejected for jobs by the U.S. Census Bureau during the federal government’s massive hiring campaign for this year’s census because of systematic discrimination, according to a class action filed today in New York federal court.
Filed on behalf of plaintiffs Eugene Johnson, 48, of New York, and Evelyn Houser, 68, of Philadelphia, by Outten & Golden LLP and a coalition of leading public interest organizations, the suit is the first of its kind to be filed against a federal agency.
The lawsuit alleges the Census Bureau unlawfully screens out job applicants who have arrest records, regardless of whether the arrest led to an actual criminal conviction . . . or to nothing at all. Government records show that more than 70 million people in the U.S. have been arrested, but more than 35 percent of all arrests nationwide never lead to prosecutions or convictions.
The coalition actively supporting the lawsuit as co-counsel includes the Center for Constitutional Rights; Community Legal Services of Philadelphia; Community Service Society, of New York; Indian Law Resource Center, of Helena, Mont.; LatinoJustice PRLDEF, of New York; Lawyers Committee for Civil Rights, of Washington, D.C.; and Public Citizen Litigation Group, of Washington, D.C.
The lawsuit asserts that Census job applicants are screened out after their names are located in an FBI database, indicating a match with an arrest record. At that point, all job applicants are required by Census to produce official records from any criminal case that shows up on their record, within 30 days. Census does not provide job applicants with copies of their FBI records, so they are unsure whether they are responding to the cases that Census has located. In addition, the official court documentation requested by Census may be impossible to locate because the

records have been sealed or expunged – or simply lost or destroyed because they are decades old.
Plaintiffs also assert that Census demands compliance with these burdensome procedures from all job applicants, not distinguishing, for instance, between job applicants who have recent, serious convictions and might not be appropriate for Census work, and those with records of minor, often non-criminal, violations such as loitering or disorderly conduct.
As the lawsuit points out, African Americans, Latinos, and Native Americans are far more likely to have arrest records and convictions as whites, and so Census’s hiring policies discriminate against people of color in violation of Title VII of the Civil Rights Act.
Eugene Johnson stated, “I’ve lived in New York City practically all my life and have 24 years’ experience in doing exactly the kind of survey work Census is hiring for. I’m good with people and am not a threat to anyone. This job would make a real difference in my life.” It has been 15 years since Mr. Johnson was convicted of a misdemeanor for which he was not sentenced to any jail time.
Evelyn Houser stated, “I worked for Census in 1990 and I’ve lived in my Philadelphia neighborhood for decades. The Bureau never should have put me through this confusing process about old arrest records in the first place. I’m retired, but I want to continue contributing to my community.” It has been nearly 30 years since Ms. Houser was arrested and completed a diversionary program, without being formally convicted of any crime.
Adam Klein, one of plaintiffs’ attorneys, stated, “The crux of the problem is that the Census Bureau deters and excludes many people who, on a fair review of their record, would readily meet the Bureau’s own standards for having no relevant criminal history.”
Samuel Miller, another attorney for the plaintiffs, stated, “The Census Bureau expresses a desire to reach communities at risk of being undercounted – particularly low-income people of color and immigrants – by hiring within those communities, yet it has erected an unnecessary and discriminatory obstacle to achieving that very goal.”

Plaintiffs will seek to have the lawsuit certified as a class action.
More information about the lawsuit is available at www.censusdiscriminationlawsuit.com.
The case is “Eugene Johnson, et al., v. Gary Locke, Secretary, U.S. Department of Commerce,” No. __, in the U.S. District Court, Southern District of New York.
Media Contact: Erin Powers or Jane Mumey, Powers MediaWorks LLC, for Outten & Golden LLP, 281.703.6000 or 713.515.4450,info@powersmediaworks.com .