There seems to be a trend developing in defense strategy in the wake of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). More and more defendants facing class actions alleging that discretionary decision-making in a culture infected with bias causes employment discrimination are moving to dismiss, arguing that such a legal theory cannot meet the Rule 23(a) commonality requirement after Wal-Mart. The latest entrant into that arena is none other than the U. S. Attorney General himself in Grogan, et al. v. Holder, No. 08-CV-1747 (D.D.C.), a workplace class action involving employees of the U.S. Marshals Service (“USMS”).

The Attorney General (“DOJ”), however, was not successful in his effort to make this race discrimination suit go away quickly.  

In Grogan v. Holder, Judge Barbara J. Rothstein of the U.S. District Court for the District of Columbia denied a Rule 12(b)(6) motion to dismiss in a class action alleging that the USMS engaged in race discrimination against a putative class of African-American Deputy U.S. Marshals. She also denied DOJ’s alternative motion to strike the class allegations under Rule 12(f) and Local Civil Rule 23.1(b).)  Plaintiffs alleged that the USMS’s Merit Promotion System contains features that systematically impede the promotion of African-American Deputy Marshals, including scoring, grading, and ranking systems where criteria are subjectively evaluated by whites, and tests that are biased in favor of whites, among others. Plaintiffs offered anecdotal examples to support these allegations, and even though the case was filed in 2008, they alleged that they had been denied the opportunity to conduct discovery necessary for class certification. 

DOJ argued that the theory of liability alleged in the complaint failed to state a claim because it was just like Wal-Mart. Instead of challenging a specific employment practice, DOJ contended that Plaintiffs “seek to prove discrimination by merely proving that the USMS’s discretionary system had produced racial disparity[.]” Id. at 5. Going further, DOJ argued that Wal-Mart “unambiguously [held] that claims based on ‘excess discretion’ do not pass muster under Title VII.” Id.

The Court did not agree with DOJ’s take on Wal-Mart. Instead, it noted that “Wal-Mart explicitly reaffirmed that ‘giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory since an employer’s undisciplined system of subjective decision-making can have precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id. at 6. The Court explained that the SCOTUS decision was concerned with a failure of proof, not on a wholesale rejection of the theory of delegated subjective discretion. Id. In sum, the Court concluded that DOJ’s motion was premature, since it could not conduct the rigorous analysis required under Rule 23 without discovery, “be it through expert testimony, statistics, deposition testimony, reports, policy statements, etc.” Id. at 6-7.

As readers of this blog know, such discovery can be costly and time-consuming. As a result, DOJ’s strategy was probably worth trying, even though it was ultimately unsuccessful.