1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GERALD BURTON, et al. , Plaintiffs,

v. DISTRICT OF COLUMBIA,

Defendant. Civil Action No. 10-01750 (BAH)

MEMORANDUM OPINION Plaintiffs are a group of forty-four African -American current and former employees of

the District of Columbia Fire and Emergency Medical Services Department (“D.C. Fire and EMS”). The plaintiffs seek to initiate a cla ss action against D.C. Fire and EMS on behalf of themselves and all African-American firefighter s and EMS employees who were disciplined or denied promotions from October 15, 2007 to the presen t. The plaintiffs alle ge that D.C. Fire and EMS subjected its African-American employees to race-based discrimination, including by creating a hostile work environment, discip lining African-American employees unfairly, and denying them promotions. Presently before th e Court is the plain tiffs’ motion for class certification or, in the alternative, for pre-cert ification discovery. For the reasons explained below, the Court will deny class certification at this time, but will permit the plaintiffs to pursue pre-certification discovery. I. BACKGROUND The plaintiffs filed this putative class acti on against the District of Columbia on October 15, 2010. 1 ECF No. 1. Ninety days later, on Janu ary 13, 2011, the plaintiffs filed a motion to

1 The original complaint named several District of Columbia officials as co-defendants, but these co-defendants have been dropped from the suit.2 certify the class. 2 ECF No. 4. This case was reassigne d to the undersigned presiding judge on January 20, 2011. On February 15, 2011, the Court issued a Minute Order noting that over 120 days had passed since the filing of the Complaint in this action, but the Court had no record that any defendant had been served. The Court directed the plaintiffs to respond to the Minute Order by March 1, 2011 by filing proof of service or explaining why service had not yet been completed. On March 1, 2011, the plaintiffs file d proof of service and a response stating that the plaintiffs intended to move for l eave to file an amended complaint. See ECF Nos. 6-10.

With leave of court and with the consent of the defendant, the plaintiffs amended their Complaint on April 7, 2011. Am. Compl., ECF No. 20. The Amended Complaint alleges that the defendant, the District of Columbia through D.C. Fire and EMS, discriminated against its African-American employees based on their race in violation of 42 U.S. C. § 1981 and 42 U.S.C. § 1983. Am. Compl. ¶ 1. Specifically, the plaintiffs allege that the defendants “meted out more severe punishments to Plaintiffs than non-Af rican-American Firefighters and EMS employees, unfairly treated Plaintiffs, denied promotions from October 15, 2007 to the present, for which they were qualified and eligible, in order to promote non-African-American Firefighters and EMS employees, and subjected Plaintiffs to a ra ce-based hostile work environment.” Mem. in Supp. of Pls.’ Am. Mot. for Class Cert., or Altern atively, Extension of the Deadline to Engage in Pre-Certification Discovery (“Pl s.’ Mem.”), ECF No. 27, at 3. Si nce the factual allegations in the Amended Complaint, broadly speaking, descri be three categories of discrimination – unfair discipline, unequal promotion, and hostile work environment – the Court will summarize the allegations for each of these categor ies of conduct separately below.

2 Local Civil Rule 23.1(b) requires a certification motion to be filed within 90 days of the filing of a putative class action.3 A. Unfair Discipline Allegations The Amended Complaint relates several anecd otes of alleged unfai r discipline of the plaintiffs. For example, the Amended Complain t states that “Lieutenant Charles Florence, who is African American, was wrongly found to have e ngaged in ‘sexual harassment’ on the basis of a single ill-considered re mark and was forced to resign from the D.C. Fire and EMS Department after more than 26 years of service. In cont rast, Sergeant James Clem, who is White, emailed a picture of his penis to an Afri can American female Firefighter . . . and received only a demotion, which was coupled with a beneficial transfer to a high-profile position. ” Am. Compl. ¶¶ 41-42. In another allegation, the Amended Complaint alle ges that Lieutenant Gerald Burton, an AfricanAmerican, received a 60-hour suspension for violat ing Standard Operating Guidelines at a fire scene, but that “White employees, who violated Standard Operating Guidelines for far less compelling reasons than Lieutenant Burton, ha ve received little or no discipline.” Id. ¶¶ 31-33. The Amended Complaint details numerous other al leged disparities in discipline in different areas. For example, it states that “Craig Cost ello is an African Am erican Firefighter and Paramedic who was suspended as a result of not passing his annual physical in September 2008; however, White employees were not suspended for failing to pass their physical examinations.”

Id. ¶ 53. Other areas of alleged di sparate discipline relate to puni shments for infractions such as off-duty citations for driving while intoxicated, failure to report ar rests, and being absent without

leave. See id . ¶¶ 58, 63, 68-69, 72. With respect to the various anecdotes of alleged unfairly harsh discipline of African-Am erican employees, the Amended Complaint generally does not allege any facts about the process by which the disciplinary acts came about, which supervisors recommended or imposed the discipline, and whet her the same processes or supervisors were4 implicated in determining the discipline for the White employees alleged to have received more lenient treatment for comparable infractions. See generally id

. B. Unequal Promotion Allegations The Amended Complaint alleges that the defendant’s practices regarding three promotional examinations were discriminator y. For the 2006 promotion exam, the Amended Complaint alleges that nine plaintiffs were deni ed promotions when “the District of Columbia deliberately allowed the 2006 Promo tion List to expire in orde r to deny [the plaintiffs] a promotion and promote White employees instead.” 3 Id. ¶ 82; see also id. ¶¶ 80-88. For the 2008 promotion exam, the Amended Complaint alleges that two plaintiffs believe that a switch in the defendant’s contractors for the exam was part of “a plan and a scheme to rapidly promote White employees” and that these employees were not prom oted as “a direct result of this scheme.” Id. ¶¶ 89-90. For the 2010 promotion exam, fourteen plai ntiffs allege that th ey “would have placed higher on the 2010 promotion list ha d it not been for the unlawful vi olation of the Special Order sequestering the test administrators and unlawfu l coaching given to White members of the D.C. Fire and EMS Department.” 4 Id. ¶¶ 91-104. C. Hostile Work Environment Allegations The Amended Complaint contains additional allegations of a racially hostile work environment that do not relate to discipline or promotions. For example, the Amended Complaint states that “African American Fire fighter Kwame Agyeman . . . was subjected to

racial slurs and differential treatme nt . . . [He] also witnesses raci al statements . . . made about

non-White District of Columbia residents and disparaging comments a bout the condition in

3 The Amended Complaint does not provide further detail about the process of the expiration of promotion lists, the role of such lists in the defendant’s promotion proces s, or how the expiration of the list would result in a discriminatory outcome. 4 The Amended Complaint does not provide further detail about these alleged circumstances.5 which they lived. Firefighter Agyeman also recei ved unequal work assignments as compared to White employees, and he was denied equal training opportunities.” Id. ¶ 64; see also, e.g. , id. ¶ 67 (“African American Victoria Nance, a Paramedic with the D.C. Fire and EMS Department, experienced a hostile work environment . . . in the form of racial epithets, mistreatment, derogatory comments, unfavorable assignm ents, and discouragement from pursuing opportunities. . .”); id. ¶¶ 77-78 (same allegations regardin g Cranston Lee and Earl Gardner). D. Class Allegations and Claims for Relief Based upon the allegations summarized above, th e plaintiffs seek to pursue a class action on behalf of “[t]he Class . . . comprised of all current and former African American Firefighters and EMS employees at the D.C. Fire and EMS Department who experienced a hostile work environment, were subjected to unfair termination, to discipline unequal to that of their similarly situated White colleagues, were discriminatorily denied promotions that were awarded to their White colleagues, or were otherw ise subjected to discrimination w ithin the applicable statute of

limitations.” 5 Id. ¶ 16. The Amended Complaint alleges five causes of action. Count I alleges the defendant subjected the plaintiffs to a hostile work envi ronment based on race in violation of 42 U.S.C. §

1981. Id. ¶¶ 105-106. Counts II and III allege discri minatory punishment in violation of 42 U.S.C §§ 1981 and 1983, respectively. Id. ¶¶ 107-110. Finally, Count s IV and V allege unequal promotion in violation of 42 U.S.C §§ 1981 and 1983, respectively. Id. ¶¶ 111-114. The plaintiffs seek declaratory and injunctive relief ; record-clearing and reinstatement for employees subject to discriminatory disc ipline; retroactive promotion of all African-American employees denied promotions from the 2006, 2008, and 2010 promotion exams; back pay and benefits;

5 The plaintiffs clarify in their briefs that the relevant bar date for the statute of limitations is October 15, 2007. Pls.’ Reply to Defs.’ Opp’n (“Pls.’ Reply”), ECF No. 31, at 7.6 compensatory damages for, inter alia , loss of reputation and physical and emotional distress; and punitive damages. Id. ¶¶ 115-120. On August 5, 2011, the plaintiffs filed thei r motion for class certification or, in the alternative, pre-certification discovery regarding th e class allegations in the Amended Complaint.

See Pls.’ Mem. The Court had granted the plaintiffs additional time to file their motion for class certification, in part, to allow the plaintiffs an opportunity to address th e Supreme Court’s June 2011 ruling in Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2551 (2011), a relevant case involving class certificati on in employment discrimination laws uits. The defendant opposes the plaintiffs’ motion for class certification. See Def.’s Opp’n to Pls.’ Am. Mot. for Class Cert., or Alternatively, Extension of the Deadline to Enga ge in Pre-Certification Discovery (“Def.’s Opp’n”), ECF No. 30. The plaintiffs’ motion is presently before the Court. II. LEGAL STANDARDS “Class certification is govern ed by Rule 23 of the Federal Rules of Civil Procedure. There are two components to the certification inquiry under Rule 23. First, each of the four elements of Rule 23(a) must be met.” Daskalea v. Wash. Humane Soc ., 275 F.R.D. 346, 355 (D.D.C. 2011) (citing Richards v. Delta Air Lines, Inc ., 453 F.3d 525, 529 (D.C. Cir. 2006)). “That is, the proponent of certifica tion must establish: ‘(1 ) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative part ies are typical of the claims or defenses of the class; and (4) the representative parties will fair ly and adequately protect the interests of the

class.’” Id. (quoting Fed. R. Civ. P. 23(a )). “These four requirements are commonly referred to in shorthand as numerosity, commonality, t ypicality, and adequacy of representation,7 respectively.” Id. “Second, certification of the proposed cla ss must be appropriate under at least one of the three categories enumerated in Rule 23(b).” Id.

District courts exercise broad discretion in deciding whether to certify a class. Id

. at 356; see also Hartman v. Duffey , 19 F.3d 1459, 1471 (D.C. Cir. 1994). “The proponent of the class bears the burden of proof.” Daskalea , 275 F.R.D. at 355 (citing Harris v. Koenig , 271 F.R.D. 383, 388 (D.D.C. 2010)). “The Supreme Court has stat ed that ‘Rule 23 does not set forth a mere pleading standard’; rather , ‘[a] party seeking class certifica tion must affirmatively demonstrate [its] compliance with the Rule—that is, [it] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.’” Id. at 355-56 (quoting

Wal-Mart , 131 S.Ct. at 2551) (emphasis in origin al). “At times, determining whether the proponent has met its burden will require the dist rict court to ‘probe behind the pleadings’ and address matters that are enmeshed with the factual and legal issues relevant to the merits of the plaintiffs’ causes of action.” Id. (citing Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 160 (1982)); see also Wal-Mart , 131 S.Ct. at 2251-52. “At the same time, the district court should ‘refrain from making determinations on the merits that are unnecessary to resolving the class certification question.’” Daskalea , 275 F.R.D. at 356 (quoting Lightfoot v. District of Columbia , 273 F.R.D. 314, 323 n.6 (D.D.C. 2011)). “Ultimately, th e district court’s determination must rest on a ‘rigorous analysis’ to ensure that all the requirements are satisfied, and ‘[a]ctual, not presumed, conformance’ with Rule 23 is indispensable.” Id. (quoting Falcon , 457 U.S. at 160- 61); see also Wal-Mart , 131 S.Ct. at 2251 (“Frequen tly that ‘rigorous analys is’ will entail some overlap with the merits of the plaintiff’s unde rlying claim. That cannot be helped.”).8 III. ANALYSIS A. Class Certification Is Denied At This Time. The Court will deny class certification at this time because the plaintiffs have failed to show that they satisfy the commonality requirement of Rule 23(a)(2). The Supreme Court addressed this requirement at length in its recent ruling in Wal-Mart Stores, Inc. v. Dukes , which was also a putative employment discrimination class action. See 131 S.Ct. at 2251-57. In WalMart , the plaintiffs alleged that Wal-Mart disc riminated against female employees by denying them equal pay or promotions compared with male employees. Id. at 2549. The plaintiffs in that

case had obtained certification from the district c ourt of a plaintiff class consisting of all female employees of Wal-Mart store “who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Id. The Court of Appeals for the Ninth Circuit substantially affirm ed the district court’s class cer tification order, but the Supreme Court reversed, denying class certif ication for failure to satisfy the commonality requirement of Rule 23(a)(2). Id. at 2249-57. The Supreme Court observed that, in an em ployment discriminati on case, “proof of commonality necessarily overlaps with [plaintiffs ’] merits contention that [the employer] engages in a pattern or practice of discrimination.” Id. at 2552. “That is so because, in resolving an individual’s Title VII [employment di scrimination] claim, the crux of the inquiry is the reason for a particular employment decision.” 6 Id. (internal quotation marks omitted) “Without some glue holding the alleged reasons for all those [employment] decisions together, it will be impossible to say that examination of all the class members’ claims for relief will

6 The plaintiffs have pled their claims under 42 U.S.C. §§ 1981 and 1983, rather than Title VII, but the Court finds Wal-Mart equally apposite to claims under those statutes, and the plaintiffs have not argued otherwise.9 produce a common answer to the crucial question why was I disfavored .” Id. The Supreme Court, relying on its prior decision in General Telephone Co. of Southwest v. Falcon , offered two ways in which plaintiffs might be able to dem onstrate commonality for al legedly discriminatory employment decisions. Id. at 2553 (citing Falcon , 457 U.S. at 152, 159 n.15). “First, if the employer ‘used a biased testing pr ocedure to evaluate . . . empl oyees, a class action on behalf of every . . . employee who might have been prej udiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).’” Id. (quoting Falcon , 457 U.S. at 159 n.15). “Second, ‘[s]ignificant proof that an employer operated under a general policy of discrimination conceivably coul d justify a class of . . . employees if the discrimination manifested itself in hiring and promotion practic es in the same general fashion, such as through entirely subjective deci sionmaking processes.’” Id. (quoting Falcon , 457 U.S. at 159 n.15). The plaintiffs do allege that the defendant used a biased testing procedure in connection with the 2006, 2008, and 2010 promotion examinations. See Am. Compl. ¶¶ 80-104. At this stage, however, the plaintiffs’ allegations about those examinations are vague and conclusory. The Amended Complaint lacks any detail about how those examinations operated in a biased way. Further, it is apparent from the Amended Co mplaint that only some of the plaintiffs would have been injured by these allegedly biased ex am procedures. Thus, even assuming that the commonality requirement could potentially be satis fied for a class action on behalf of every employee prejudiced by these testing procedures, it is unclear from the current record whether the other Rule 23 elements, like numerosity, c ould be satisfied for such a class.

As for the second method of demonstra ting commonality in a putative employment discrimination class action, the plaintiffs have not shown “[s]ignificant proof that [their] employer operated under a general policy of discrimina tion.” The plaintiffs have alleged a series10 of instances in which African-American empl oyees purportedly experienced a hostile work environment or received harsher punishments for disciplinary infractions than similarly situated White employees, but many of these allegations are either conclusory or rely on a comparison of the punishments for infractions th at appear distinguishable. See, e.g. , Am. Compl. ¶ 67 (“African American Victoria Nance, a Parame dic with the D.C. Fire and EMS Department, experienced a hostile work environment . . . in the form of racial epithets, mistreatment, derogatory comments, unfavorable assignm ents, and discouragement from pursuing opportunities. . .”); id. ¶¶ 47-48 (comparing African-America n firefighter terminated for “accidentally injuring another Firefighter while pl aying with a knife” with a White firefighter demoted for injuring two other fire fighters by throwing plates). Significantly, the Amended Complaint fails to allege any details a bout the defendant’s disciplinary process itself and how it ope rates in a discriminatory fashion. See Wal-Mart , 131 S.Ct. at 2553 (quoting Falcon , 457 U.S. at 159 n.15) (“[S]igni ficant proof that an employer operated under a general policy of discrimina tion conceivably could justify a class . . . if the discrimination manifested itself in [employmen t] practices in the same general fashion, such as through entirely subjective deci sionmaking processes.”) (emphasi s added). The plaintiffs respond to this critique in their reply brief by noti ng that the “Defendant is fully aware of its own disciplinary process.” Pls.’ Repl y at 4. The plaintiffs explain further that “[i]n essence, the selection of forums for discipline are directed by an Assistant Fire Ch ief who would assign the adjudication of discipline to either a Batta lion Fire Chief’s Conference, a Deputy Chief’s Conference or a Trial Board . . . . Throughout Pl aintiffs’ Amended Compla int, Plaintiffs were quite clear that there was disparat e discipline issued by Trial Boards.” 7 Id. There is nothing

7 The Court does not know whether the plaintiffs mean to concede that adjudications outside the Trial Boards were non-discriminatory.11 overtly discriminatory about the plaintiffs’ desc ription of this process and if the plaintiffs’ contention is simply that the officers on the Tr ial Board consistently discriminated against African-Americans by giving them harsher punishm ents than Whites for the same conduct, the plaintiffs must present more evidence than merely the scattershot anecdotes of the Amended Complaint. See Moore v. Napolitano , 269 F.R.D. 21, 27 (D.D.C. 2010) (“To satisfy Rule 23(a)’s commonality requirement, plaintiffs may put fort h statistical and anecdot al evidence to support

an inference that the defendant’s policies and procedures are subjective and su sceptible to racial discrimination. . . .”); see also Wal-Mart , 131 S.Ct. at 2555-56 (assessin g statistical evidence and anecdotal evidence consisting of approximately 120 affidavits from Wal-Mart employees reporting discrimination and findi ng that this evidence fell “well short” of demonstrating commonality in the context of the claims agains t Wal-Mart). In this case, as noted above,

several of the anecdotes of disparate treatmen t are either vague or feature questionable comparisons, and statistical evidence is entirely absent here. Accordingly, the Court finds that the plaintiffs have failed to meet their bur den of proof by affirmatively demonstrating compliance with the commonality requirement of Rule 23. See id. at 2551. Class ce rtification is

therefore denied at this time and the Court need not reach the parties’ arguments regarding the additional prerequisites for certification under Rule 23. B. Pre-Certification Discovery Is Warranted.

In the alternative to class cer tification, the plaintiffs have requested pre-certification discovery to ascertain additional facts that may en able the plaintiffs to satisfy their burden of proof in seeking class certifica tion. “[O]ften the pleadings alone will not resolve the question of

class certification and . . . some discovery will be warranted.” Vinole v. Countrywide Home Loans, Inc ., 571 F.3d 935 (9th Cir. 2009); accord Mills v. Foremost Ins. Co ., 511 F.3d 1300,12 1309 & n.14 (11th Cir. 2008); In re Am. Med. Sys., Inc ., 75 F.3d 1069, 1086 (6th Cir. 1996). The Supreme Court’s ruling in Wal-Mart confirms that pre- certification discovery should ordinarily be available where a plaintiff has alleged a potentially viable class claim because Wal-Mart emphasizes that the district court’s class certif ication determination must rest on a “rigorous analysis” to ensure “[a]ctual, not presumed, conformance” with Rule 23. Wal-Mart , 131 S.Ct. at 2551; see also id. at 2551-52 (“Frequently that ‘rigorous analysis ’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.”) (internal quota tion marks and alterations omitted). The Court will therefore grant the plaintiffs’ request for pr e-certification discovery and will refer this case to a Magistrate Judge for a period of si xty days for pre-certification discovery. 8

IV. CONCLUSION For the reasons explained above , the plaintiffs’ motion for cl ass certification or, in the alternative, for pre-certifi cation discovery is granted in part an d denied in part. The request for

class certification is denied at th is time. This case shall be refe rred to a Magistrate Judge for precertification discovery for a peri od of sixty days. An appropria te Order will accompany this Memorandum Opinion.

DATED: December 23, 2011 /s/ 

# Beryl A. Howell BERYL A. HOWELL United States District Judge

8 The plaintiffs’ reply brief requests discovery regarding various topics. Pls.’ Reply at 14-15. The Court does not rule that the plaintiffs are entitled to discovery on any partic ular subjects at this time. The parties shall negotiate the scope of discovery with the assistance of the Magistrate Judge, if necessary.