                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
CYNTHIA ARTIS, et al.,         )
                               )
               Plaintiffs,     )
                               )
          v.                   )   Civil Action No. 01-400 (EGS)
                               )
JANET L. YELLEN,               )
                               )
               Defendant.      )
______________________________)

                       MEMORANDUM OPINION

  Plaintiffs bring this lawsuit on behalf of a putative class of

African-American and Native-American secretaries and clerical

employees currently or formerly employed by the Board of

Governors of the Federal Reserve System (“Federal Reserve

Board”) who allege that they have suffered racial

discrimination. The parties to this case have engaged in a

prolonged period of class discovery, during which the plaintiffs

largely refused to respond to written discovery requests and

declined entirely to appear for depositions. As a result, the

Court compelled their participation in discovery.

  After class discovery closed, plaintiffs asserted that the

defendant had wrongly withheld certain information. The Court

rejected these arguments in 2012, when plaintiffs filed a motion

to compel and failed to identify any discovery request to which

the defendant did not properly respond. Plaintiffs repeatedly
sought reconsideration of that Order. Each time, they made

arguments that the Court had previously rejected or that could

have been raised in the original motion to compel. Plaintiffs’

motion for class certification contains yet more requests for

reconsideration of these discovery rulings.

     Once those arguments are cleared away, little remains of

plaintiffs’ motion, which cited not a single legal decision

related to Federal Rule of Civil Procedure 23. Indeed,

plaintiffs presented almost no evidence or argument regarding

Rule 23. The Court has examined the record and found nothing to

indicate that plaintiffs’ injuries stem from any common action,

policy, or practice of the Federal Reserve Board, and the

testimony of each plaintiff confirms that their claims are

unique and individualized. Accordingly, upon consideration of

the motion for class certification, the response and reply

thereto, the applicable law, and the entire record, the Court

DENIES plaintiffs’ motion. The Court also considers the

plaintiffs’ motion to supplement the record, the response and

reply thereto, and DENIES that motion.

I.        Background

     A.     The Federal Reserve Board’s Personnel Practices.

     The Federal Reserve Board is an independent federal agency

that is organized into ten divisions and five offices. See

Declaration of Christine M. Fields (“Fields Decl.”), ECF No.


                                    2
213-2 ¶¶ 4–5, 7. Each division is managed by a Division

Director, who is “afforded considerable autonomy in regard to

the structure, staffing and operation of their Division.” Id. ¶

6. Accordingly, “personnel practices in regard to such things as

performance evaluations, promotions, and selections for vacant

positions can and do vary significantly from division to

division.” Id. This applies to a variety of practices:

     Supervision: The manner in which secretaries and clerical
      staff are supervised varies widely. “In some divisions, one
      manager is responsible for supervision of all secretaries
      and clerical workers . . . [i]n others, supervision of
      secretaries and clerical workers is divided up among
      several or many managers.” Id. ¶ 9.

     Performance Evaluations: All Federal Reserve Board
      employees are reviewed annually, but “[e]ach Division
      Director determines the evaluation format as well as the
      structure [of the evaluation].” Id. ¶¶ 10–11. In some, a
      clerical worker may receive an evaluation that is the
      result of input from each individual that worker supports;
      in others, a single individual may complete the evaluation.
      See id. ¶ 11.

     Salary and Cash Awards: Federal Reserve Board employees are
      compensated with a salary, which may be increased by merit
      increases. See id. ¶ 12. Employees may also be given cash
      awards “at the discretion of their respective Division
      Director.” Id.; see also id. ¶ 13 (“In some divisions, the
      Division Director may tie these awards to . . . performance
      ratings while in other divisions the Division Director may
      earmark cash award funds to reward successful completion of
      specific projects.”).

     Promotions: Promotion decisions are also delegated to the
      individual Division Director. See id. ¶ 16. “Employees . .
      . are not promoted on any fixed schedule but rather are
      promoted based on the performance criteria set by the
      division, the needs of the division and the individualized
      assessment of the secretarial and clerical employee’s
      skills and performance.” Id.


                                 3
    Although the preceding personnel decisions are largely within

the discretion of lower-level managers, the Federal Reserve

Board has a general Equal Employment Opportunity policy, which

provides that “the Board prohibits discrimination in employment

on the basis of race, color, religion, sex, national origin,

age, disability, or genetic information, and promotes the full

realization of equal employment opportunity . . . through a

continuing affirmative program.” Id. ¶ 8.

    B.   The Plaintiffs and Their Claims.

    Of the sixteen plaintiffs who brought this lawsuit, fourteen

remain in the case.1 They are each secretaries or clerical

employees currently or formerly employed by the Federal Reserve

Board. See Fourth Am. Compl., ECF No. 127 ¶ 5. All are African-

American, except for Linda Proctor, who is a Native American.

See id. ¶¶ 5, 44. The plaintiffs propose to bring a class

challenge to the defendant’s allegedly discriminatory treatment

of African-American and Native-American secretaries and clerical

employees. Plaintiffs claim that the class has experienced

discrimination in five areas: salary, cash awards, promotions,

performance reviews, and career-transition agreements.

Plaintiffs never tie these allegations to any common cause,

however, and each plaintiff’s experience differs substantially.

1
  Donna Love-Blackwell’s claims were dismissed on April 5, 2013.
See Order, ECF No. 178. Plaintiffs now request that Crystal Clay
be dismissed and the Court GRANTS that request.


                                 4
    No plaintiff appears to assert discrimination in connection

with all five practices, and many admit to having no evidence

that they were treated unfavorably in connection with one or

more of the challenged practices. All but Linda Proctor either

did not receive a career-transition agreement or did not allege

discrimination in connection with one.2 Nine plaintiffs testified

that most or all of their performance reviews were fair. See

Adams Dep. at 56:9–11; Cohen Dep. at 80:2–5; Dorey Dep. at 62:8–

63:19; Ellis Dep. at 303:21–304:3; Hill Dep. 227:19–228:8; Logan

Dep. at 229:10–14; Matthews Dep. at 113:5–12; Deposition of

Linda Proctor (“Proctor Dep.”), ECF No. 213-1 at 57:22–58:3;

Williams Dep. at 18:11–18. Five plaintiffs testified that they

did not allege discrimination in connection with salary

increases, or that they could not identify any Caucasian

employee who was paid more. See Cohen Dep. at 77:11–14, 118:8–

2
  See Deposition of Tracy Newton-Adams (“Newton-Adams Dep.”), ECF
No. 213-1 at 23:23–24:1; Deposition of Cynthia Artis (“Artis
Dep.”), ECF No. 213-1 at 338:18–339:8; Deposition of Barbara
Carter (“Carter Dep.”), ECF No. 213-1 at 126:7–9; Deposition of
Sheryl Cohen (“Cohen Dep.”), ECF No. 213-1 at 115:3–10;
Deposition of Donna Dorey (“Dorey Dep.”), ECF No. 213-1 at
158:19–159:5; Deposition of Sharon Ellis (“Ellis Dep.”), ECF No.
213-1 at 301:3–5; Deposition of Kimberly Hardy-Barnes (“Hardy-
Barnes Dep.”), ECF No. 213-1 at 136:4–15; Deposition of
Earnestine Hill (“Hill Dep.”), ECF No. 213-1 at 233:17–21,
274:5–11; Deposition of Sharon Logan (“Logan Dep.”), ECF No.
213-1 at 272:15–273:5; Deposition of Kathleen Matthews
(“Matthews Dep.”), ECF No. 213-1 at 122:18–19; Deposition of
Michelle McGhee (“McGhee Dep.”), ECF No. 213-1 at 144:16–145:14;
Deposition of Georgianna Terrell (“Terrell Dep.”), ECF No. 213-1
at 65:15–18; Deposition of Yvette Williams (“Williams Dep.”),
ECF No. 213-1 at 33:22–35:16.


                                 5
11; Dorey Dep. at 49:8–10; Hill Dep. at 78:13–16; Matthews Dep.

at 87:15–22; McGhee Dep. at 98:22–99:3. With respect to cash

awards, six plaintiffs were unsure if anyone had received higher

awards than they had. See Adams Dep. at 49:24–50:1; Cohen Dep.

at 78:5–9; Dorey Dep. at 49:5–7; Matthews Dep. at 98:5–7; McGhee

Dep. at 69:21–70:6; Terrell Dep. at 84:15–18. Finally, many

plaintiffs testified that they were regularly promoted,

including one who was promoted into a management position,

another who was promoted to the highest secretarial position in

her department, and a third who never applied for a promotion.

See Artis Dep. at 129:18–21; Ellis Dep. at 216:17–217:8; Hardy-

Barnes Dep. at 85:2–7; Hill Dep. at 344:2–22; Williams Dep. at

33:3–12.

    Plaintiffs also provide no evidence to show that their claims

of individual discrimination stem from a common source. The

record contains excerpts of the plaintiffs’ depositions, which

confirm that decisions related to the challenged practices are

devoted to the discretion of dozens, if not hundreds, of low-

level supervisors, who act in a largely subjective manner. See,

e.g., Artis Dep. at 158:12–19 (decisions were “subjective

amongst the mangers”; “it all depended on what manager you

worked for”).3 For example, testimony revealed that the process


3
  See also id. at 99:1–12, 147:4–8, 206:8–9, 258:1–3, 329:1–7;
Ellis Dep. at 256:15–18 (treatment is “very subjective based on


                                 6
for making decisions regarding cash awards varied substantially.

See Hill Dep. at 270:7–16 (each Division “makes their own

choice” regarding cash awards); Carter Dep. at 70:19–71:6 (in

the Audit Review Section of the Bank Operations Division, cash

awards are “very rare”); Ellis Dep. at 208:16 (in the Legal

Division, “everybody gets cash awards”). Nor is there evidence

that all supervisors act in a uniform manner. Many plaintiffs

stated that some of their supervisors discriminated against

them, but that many did not.4

    C.   The History of This Lawsuit.

    This case has its roots in a lawsuit that was filed in 1996.

See Artis v. Greenspan, No. 96-2105 (D.D.C. filed Sept. 11,

1996). In that case, a group of African-American secretaries

employed by the Legal Division of the Federal Reserve Board



your manager”); Hardy-Barnes Dep. at 20:16–21:5 (the Federal
Reserve Board had a “totally . . . subjective policy,” which
“depends on each individual supervisor . . . to apply that
policy to their employees”); Hill Dep. at 230:22–231:3; Logan
Dep. at 75:13–76:3, 103:16–19, 230:1–3, 274:19–22 (supervisors’
decisions were “very subjective,” including decisions regarding
cash rewards, merit increases, and performance reviews);
Williams Dep. at 47:8–12.
4
  See Artis Dep. at 208:2–6; Carter Dep. at 29:3–9; Cohen Dep. at
111:10–19; Dorey Dep. at 31:6–20, 58:4–8, 105:13–17, 125:5–11,
187:5–16; Ellis Dep. at 257:14–21; Hardy-Barnes Dep. at 21:12–
15; Hill Dep. at 210:17–211:2, 212:22–213:7, 230:22–231:3,
248:6–7; Logan Dep. at 62:7–9, 178:20–179:2, 187:4–12, 189:13–
22, 196:7–9, 206:15–20, 216:8–17, 220:12–20, 255:3–256:3;
Matthews Dep. at 34:16–35:16, 55:18–56:6, 109:19–22; McGhee Dep.
at 75:16–22, 89:20–90:3, 164:14–18, 187:19–188:3; Terrell Dep.
at 101:9–18.


                                 7
alleged that they had suffered racial discrimination. The

district court dismissed that case for failure to exhaust

administrative remedies and the D.C. Circuit affirmed. See Artis

v. Greenspan, 158 F.3d 1301 (D.C. Cir. 1998). In the wake of

that dismissal, plaintiffs filed this case.5

    The Federal Reserve Board quickly moved to dismiss for failure

to exhaust administrative remedies. In light of factual disputes

regarding administrative counseling sessions that were relevant

to that motion, this Court found it “appropriate to permit

plaintiffs to conduct . . . limited . . . discovery” on the

topic. Artis v. Greenspan, 223 F. Supp. 2d 149, 155 (D.D.C.

2002). After contentious discovery, the defendant renewed its

motion to dismiss. See Second Mot. to Dismiss, ECF No. 40.

    On January 31, 2007, this Court granted the defendant’s

motion. See Artis v. Greenspan, 474 F. Supp. 2d 16 (D.D.C.

2007). The Court denied plaintiffs’ motion for reconsideration

of that decision on March 2, 2009. See Artis v. Bernanke, 256

F.R.D. 4 (D.D.C. 2009). Plaintiffs appealed these Orders and the

D.C. Circuit reversed. See Artis v. Bernanke, 630 F.3d 1031

(D.C. Cir. 2011). After the Circuit’s Mandate issued, the

parties submitted proposed schedules for further proceedings and


5
  The plaintiffs filed an earlier, all but identical, lawsuit on
August 3, 1999. See Artis v. Greenspan, No. 99-2073 (D.D.C.
filed Aug. 3, 1999). The cases were ultimately consolidated
under this case number. See Order, ECF No. 8.


                                 8
this Court issued a Scheduling Order. See Scheduling Order, ECF

No. 95. That Order divided the case into three phrases, the

first of which was class certification. Id. at 2. The Court

scheduled class discovery to last until July 31, 2012, and

defined it to include “any discovery that is relevant under Fed.

R. Civ. P. 26, to class certification issues arising under Fed.

R. Civ. P. 23.” Id. at 2, 3.

  D.   The Class Discovery Period.

  During class discovery, the plaintiffs largely failed to

respond to the defendant’s discovery requests and refused

entirely to appear for properly noticed depositions. Plaintiffs

also “did not notice any depositions and, specifically, did not

seek to take a Rule 30(b)(6) deposition.” Order, ECF No. 184 at

2. Plaintiffs did submit three sets of written discovery

requests to the defendant, however. The Federal Reserve Board

provided written responses to each set, and raised various

objections to many of plaintiffs’ requests. See Def.’s Responses

to Pls.’ First Set of Written Discovery, ECF No. 212-4; Def.’s

Responses to Pls.’ Second Set of Written Discovery, ECF No. 212-

5; Def.’s Response to Pls.’ Third Set of Written Discovery, ECF

No. 212-6. Defendant also conducted a rolling document

production, which culminated in the production of personnel data

from the years 1988–2011. See Letter, ECF No. 128-6 at 2.




                                9
    Both parties approached the close of class discovery

dissatisfied. On July 27, 2012, the defendant moved to compel

the plaintiffs to provide full written responses to discovery

requests and to appear for depositions. See Mot. to Compel, ECF

No. 120. On August 17, 2012, plaintiffs moved to compel the

defendant to provide additional personnel data and to hold an

informal conference regarding its data, but they identified no

discovery request to which defendant had not properly responded.

See Pls.’ Mot. to Compel, ECF No. 123. The Court addressed these

motions during a hearing on October 10, 2012, which was

summarized in a subsequent Order:

      [T]he Court granted defendant’s motion to compel
      plaintiffs’ depositions and other discovery requests
      with which plaintiffs did not comply. The Court denied
      plaintiffs’ cross-motion to compel, finding that
      plaintiffs had not properly requested the information
      that they alleged had been withheld. With respect to
      plaintiffs’ arguments regarding a “conference” with
      certain employees of defendant, the Court found that
      plaintiffs had not properly noticed the deposition of
      those employees. The Court noted that plaintiffs had
      not served a 30(b)(6) notice of deposition, which
      would have been a possible avenue for obtaining such
      information.

Order, ECF No. 184 at 2–3; see also Order, ECF No. 139

(memorializing the Court’s October 10, 2012 oral rulings).6 Even

during the October 10, 2012 hearing, plaintiffs “did not attempt

6
  During the October 10, 2012 hearing, the Court also ordered
plaintiffs’ counsel to pay defendant’s expenses, including
attorneys’ fees, incurred in relation to plaintiffs’ failures to
produce documents and appear for depositions and in litigating
the defendant’s motion to compel. See Order, ECF No. 139 at 2.


                                 10
to identify any discovery requests to which defendant failed to

respond.” Order, ECF No. 199 at 2.

  On October 22, 2012, even though class discovery had closed

three months earlier, the plaintiffs moved for leave to take

five depositions. See Pls.’ Mot. to Take Depositions, ECF No.

140. The Court granted this request in part, “permit[ting]

plaintiffs to serve one out-of-time Rule 30(b)(1) or 30(b)(6)

notice of deposition on defendant, subject to . . .

limitations.” Minute Order of November 20, 2012. The Court

limited the scope of the deposition to questions about (1) data

previously produced by the Federal Reserve Board and (2)

documents that were not produced but had allegedly been properly

requested in timely served document requests. See id.

  On December 19, 2012, the defendant moved for a protective

order, arguing that plaintiffs had issued a deposition notice

that did not comply with these limitations. See Def.’s Mot. for

Protective Order, ECF No. 160. This Court agreed, noting that

plaintiffs’ notice “far exceed[ed]” the limitations. See Minute

Order of January 18, 2013. The Court permitted the plaintiffs to

try again, gave detailed guidance as to the proper form for the

notice, and emphasized that “[t]his will be plaintiffs’ final

opportunity . . . . If the revised 30(b)(6) notice fails to

comply with this Order, it will be stricken with prejudice.” Id.




                               11
    On February 12, 2013, the defendant moved for a protective

order regarding plaintiffs’ revised notice. See Def.’s Second

Mot. for Protective Order, ECF No. 169. This Court found that

the amended notice was “a confusing collection of allegations,

cross-references, and attachments,” which “request[ed]

information far beyond the scope of the Court’s Orders.” Order

ECF No. 184 at 11, 12. The Court reiterated that it had imposed

limitations on the scope of the deposition for a reason:

“Plaintiffs forfeited the right to seek depositions on broad-

ranging topics relevant to class certification when they failed

to serve a single notice of deposition during the class

discovery period.” Id. at 14.7 Accordingly, the Court granted the

defendant’s second motion for a protective order, recognized the

“heavy burden placed on defendant in having to respond to

7
  The Court also rejected plaintiffs’ argument that they could
take unlimited discovery due to the D.C. Circuit’s prior opinion
in this case. See id. at 14–15. In the passage cited by
plaintiffs, the D.C. Circuit stated that government agencies
ought not “demand[] excessively detailed support for a class-
wide complaint alleging a pattern and practice of subtle
financial and professional discrimination” in connection with
any administrative counseling requirement. Artis, 630 F.3d at
1035 (citations omitted). Requiring such support would put the
cart before the horse, the Circuit found, because “class-wide
claims of systemically depressed salaries, performance ratings,
advancement opportunities, and the like can often be proven only
by a statistical comparison of the employer’s treatment of the
class to its treatment of non-minority employees[, which]
[u]sually . . . will be possible only after the employees obtain
data from their employer, whether informally or through
discovery.” Id. “What is implicit in this statement,” this Court
emphasized, “is that the discovery must be properly requested.”
Order, ECF No. 184 at 14–15.


                                 12
plaintiffs’ successive, failed attempts to serve a Rule 30(b)(6)

Notice of Deposition,” and concluded that “plaintiffs have had

enough opportunities to formulate a proper 30(b)(6) Notice” and

therefore “are not entitled to any further opportunities to

amend their 30(b)(6) Notice.” Id. at 15, 16.

  As they were seeking to take untimely depositions, plaintiffs

also sought reconsideration of the Court’s October 10, 2012

Order denying their motion to compel. Their first request

largely raised arguments this Court had previously rejected. See

Pls.’ Mot. to Reconsider, ECF No. 141. In denying that motion,

the Court also rejected plaintiffs’ request for “an evidentiary

hearing to allow their expert to explain precisely why

plaintiffs claim that the electronic data already produced is

‘unusable.’” Order, ECF No. 194 at 8. The Court noted that

plaintiffs’ motion to compel “did not set forth in any detail

why the data was unusable or why the Board’s production was

otherwise deficient” and “failed to specify a discovery request

to which the Board failed to respond.” Id. Thus, “[a]s a result

of plaintiffs’ failure to timely and properly raise their

objections to the Board’s data production, plaintiffs are now

foreclosed from continuing to do so.” Id. at 9.

  Dissatisfied, the plaintiffs moved to reconsider once more on

August 6, 2013. See Second Mot. to Reconsider, ECF No. 196. The

Court denied this motion on August 28, 2013:


                               13
     Although styled as such, plaintiffs’ motion is clearly
     not one for reconsideration. The motion either raises
     arguments that should have been, but were not, raised
     in plaintiffs’ underlying motion or their first motion
     for reconsideration, or merely repeats arguments that
     the Court has already considered and rejected. This
     approach, pursued by plaintiffs several times in this
     case, is a waste of judicial resources and the
     resources of defendant, a government entity.

Order, ECF No. 199 at 3–4. The Court also addressed plaintiffs’

newfound argument “that they have recently ‘discovered’ that

defendant has withheld the production of ‘job codes’ from

previous data.” Id. at 5. “Even if this were true,” this Court

held, “it does not serve as a basis for reconsideration”:

     The Court did not deny [plaintiffs’] motion to compel
     on the grounds that job code information did not exist
     or was not in the possession of [defendant]. The Court
     denied the motion [to compel] because plaintiffs
     failed to set forth any properly-served discovery
     requests to which defendant failed to respond.
     Although plaintiffs purport to attach copies of
     properly-served discovery requests that requested job
     codes to the pending motion, which is the third
     attempt by plaintiffs to litigate this specific
     discovery issue, it is too late. Even if those
     documents did reflect discovery that was requested but
     not produced, plaintiffs cannot use a motion for
     reconsideration to argue issues that could have been
     raised earlier, but were not.

Id. at 5.

  On October 8, 2013, the plaintiffs attempted to appeal these

discovery orders by moving to enforce the D.C. Circuit’s mandate

reversing this Court’s decision granting the defendant’s motion

to dismiss. See Mot. to Enforce, Artis v. Bernanke, No. 09-5121,

Doc. 1460265 (D.C. Cir. Oct. 8, 2013). On November 26, 2013, the


                               14
Circuit denied the motion. See Order, Artis v. Bernanke, No. 09-

5121, Doc. 1468033 (D.C. Cir. Nov. 26, 2013).

    E.   Plaintiffs’ Motion for Class Certification

    On January 3, 2014, plaintiffs filed their motion for class

certification. See Mot. to Certify Class (“Mot.”), ECF No. 211.

Although plaintiffs attached exhibits to that motion, they filed

additional exhibits—and another motion for class certification—

on January 6, 2014. See Suppl. Mot. and Exhibits, ECF No. 212.8

The Federal Reserve Board filed its opposition on February 10,

2014. See Opp. to Mot. to Certify Class (“Opp.”), ECF No. 213.

Plaintiffs filed their reply brief on March 28, 2014. See Reply

in Supp. of Mot. (“Reply”), ECF No. 219. Yet again, plaintiffs

filed an untimely second reply brief and an accompanying

exhibit. See Errata, ECF No. 220.9




8
  Plaintiffs have repeatedly wasted this Court’s and the
defendant’s time and resources by filing timely, but incomplete,
versions of pleadings and then filing one or more untimely
“corrected” versions. In accordance with the Court’s December 4,
2012 Minute Order, which required the plaintiffs to seek leave
of Court before filing untimely errata, the Court ORDERS that
the brief filed on January 6, 2014 as ECF No. 212 be STRICKEN
FROM THE DOCKET. The exhibits thereto may remain part of the
record, but plaintiffs are warned that future failures to comply
with Court Orders may result in this case being dismissed with
prejudice. See, e.g., Bristol Petroleum Corp. v. Harris, 901
F.2d 165, 167-68 (D.C. Cir. 1990); Fed. R. Civ. P. 41(b).
9
  In accordance with this Court’s December 4, 2012 Minute Order,
the Court ORDERS that the brief filed on March 29, 2014 as ECF
No. 220 be STRICKEN FROM THE DOCKET.


                                 15
  On May 1, 2014, plaintiffs filed a motion seeking to

supplement the record with yet another untimely exhibit. See

Mot. to Suppl., ECF No. 221. Defendant filed its opposition on

May 14, 2014. See Opp. to Mot. to Suppl., ECF No. 222.

Plaintiffs filed their reply brief on May 21, 2014. See Reply in

Supp. of Mot. to Suppl., ECF No. 223.

II.    Preliminary Matters

  A.     Plaintiffs’ Motion to Supplement the Record is Denied.

  “A Scheduling Order is intended to serve as the unalterable

road map (absent good cause) for the remainder of the case.” Dag

Enter., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 104 (D.D.C.

2005) (quotation marks omitted). It “‘is not a frivolous piece

of paper, idly entered, which can be cavalierly disregarded by

counsel without peril.’” Id. (quoting Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)). On July

21, 2011, the Court set a schedule for the completion of the

class-certification portion of this case. See Scheduling Order,

ECF No. 95. Plaintiffs’ repeated requests for reconsideration of

this Court’s discovery orders necessitated a one-year delay in

that schedule and the Court ultimately ordered the plaintiffs to

submit their expert report by September 3, 2013, to make their

expert available for a deposition by September 30, 2013, and to

file their motion for class certification by January 3, 2014.

See Minute Order of July 8, 2013. Although plaintiffs submitted


                                 16
an expert report on September 3, 2013, they also submitted an

updated report on September 30, 2013. See Mot. for Extension,

ECF No. 204 at 1. In exchange for a continuation of the expert’s

deposition, the defendant agreed not to object to the untimely

report. See id. The Court accepts the parties’ agreement with

respect to the first untimely report, but plaintiffs’ May 1,

2014 motion, which seeks to supplement the record with yet

another updated expert report and is opposed by the defendant,

asks too much. That report was filed eight months after the

deadline for the submission of expert reports, seven months

after the deposition of plaintiffs’ expert, and over one month

after the motion for class certification became ripe.

  “A party must make [expert] disclosures at the times and in

the sequence that the court orders.” Fed. R. Civ. P.

26(a)(2)(D). The purpose of that Rule is to “prevent[] experts

from lying in wait to express new opinions at the last minute,

thereby denying the opposing party the opportunity to depose the

expert on the new information or closely examine the expert’s

new testimony.” Minebea Co. v. Papst, 231 F.R.D. 3, 5 (D.D.C.

2005) (quotation marks omitted); see also Coles v. Perry, 217

F.R.D. 1, 4 (D.D.C. 2003). Plaintiffs have done just that,

springing a new report well after the defendant deposed their

expert and briefed the motion for class certification. As a

sanction for failing to follow this rule, Federal Rule of Civil


                               17
Procedure 37(c)(1) provides that “the party is not allowed to

use that information or witness to supply evidence on a motion .

. . unless the failure [to disclose] was substantially justified

or is harmless.” The production of a new expert report that

raises new theories after a motion for class certification has

been fully briefed is not harmless. It forces the defendant

either to forfeit the ability to address the report, or to

depose the new expert and brief the motion for class

certification anew. Nor have plaintiffs offered a reasonable

justification for their delay.

  An untimely expert report could be excused by Federal Rule of

Civil Procedure 26(e), which “permits supplemental reports only

for the narrow purpose of correcting inaccuracies or adding

information that was not available at the time of the initial

report.” Richardson v. Korson, 905 F. Supp. 2d 193, 199 (D.D.C.

2012) (quotation marks omitted). Plaintiffs do not argue, nor

could they, that their report seeks only to correct

inaccuracies. Nor is the information on which the report relies

new, notwithstanding plaintiffs’ assertion that the report is

based on “newly discovered evidence.” Mot. to Supp., ECF No. 221

at 1. In fact, the report is based on the same data the Federal

Reserve Board produced to the plaintiffs in May 2012. For that




                                 18
reason, the Court DENIES plaintiffs’ motion to supplement.10 For

the same reason, the two-page “expert report” attached to

plaintiffs’ reply brief in support of their motion to compel and

dated March 28, 2014, Ex. A to Pls.’ Reply, ECF No. 220-1, is

also untimely and is STRICKEN FROM THE DOCKET.

     B.   Courts May Address Class Certification Before the Merits.

     Plaintiffs assert that this Court has wrongly forced them to

demonstrate their entitlement to class certification prior to

adjudicating the merits of their claims. See Mot. at 13. This

claim is baseless. Federal Rule of Civil Procedure 23 requires

the Court, at “an early practicable time,” to “determine by

order whether to certify the action as a class action.” Fed. R.

Civ. P. 23(c)(1)(A). This Court’s Local Rules further expedite

the process by requiring the filing of a motion for class

certification “[w]ithin 90 days after the filing of a complaint



10
  The Court also has serious doubts about the veracity of
plaintiffs’ May 1, 2014 expert report. The expert supposedly
discovered gaps in the defendant’s personnel data regarding 334
employees. See id. at 3. Upon receiving the report, the
defendant “randomly selected a number of employees listed in the
[report] and reviewed the information the Board provided
plaintiffs’ counsel in May 2012 regarding those employees.” Opp.
to Mot. to Suppl., ECF No. 222 at 3. “In every single instance
[defendant] reviewed, the supposedly ‘missing’ data were indeed
provided.” Id. at 3–4. In response, plaintiffs concede that they
“provided the court with inaccurate statistical data,” but now
assert that the data is missing for 186 employees. See Reply in
Supp. of Mot. to Suppl., ECF No. 223 at 2, 3. Plaintiffs are
warned that they may be subject to sanctions if they continue to
provide “inaccurate” evidence or representations to the Court.


                                  19
. . . unless the court in the exercise of its discretion has

extended this period.” Local Civ. R. 23.1(b).

     Courts have also made clear that class certification comes

first. “[P]rior to reaching the merits[, the Court] must conduct

a . . . class certification analysis to ensure compliance with

Rule 23 requirements.” Brewer v. Holder, No. 8-1747, 2013 WL

5397841, at *5 (D.D.C. Sept. 27, 2013) (emphasis added); see

also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 965–66 (11th

Cir. 2008); Chavez v. Ill. State Police, 251 F.3d 612, 629–30

(7th Cir. 2001). Plaintiffs’ reliance on International

Brotherhood of Teamsters is misguided. See Mot. at 13–14. That

case held only that courts must address the merits before

addressing individual relief. See 431 U.S. 324, 361 (1977). The

Court thus appropriately began with class certification.11

     C.   Plaintiffs’ Discovery Arguments Are Meritless.

     Plaintiffs assert throughout their motion that they have been

deprived of discovery responses to which they were entitled.

Although raised in a motion for class certification, these

arguments are merely renewed requests for reconsideration of the

Court’s October 10, 2012; July 8, 2013; and August 28, 2013

11
  Relatedly, plaintiffs wrongly assert that they are entitled to
have a jury determine the facts at this stage. See Mot. at 14. A
jury may be the ultimate fact finder, but “at the class
certification stage . . . the judge is the decision maker.” In
re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th
Cir. 2011); see also In re New Motor Vehicles Canadian Export
Antitrust Litig., 522 F.3d 6, 24 (1st Cir. 2008).


                                  20
Orders. Moreover, plaintiffs’ arguments have all been rejected

by this Court (many on multiple occasions). See supra at 10–15.

This Court’s August 28, 2013 Order is equally applicable here:

     The motion either raises arguments that should have
     been, but were not, raised in plaintiffs’ underlying
     motion   [to  compel]   or  their  first   motion  for
     reconsideration, or merely repeats arguments that the
     Court has already considered and rejected. This
     approach, pursued by plaintiffs several times in this
     case, is a waste of judicial resources and the
     resources of defendant, a government entity. “In this
     Circuit, it is well-established that ‘motions for
     reconsideration,’ whatever their procedural basis,
     cannot be used as ‘an opportunity to reargue facts and
     theories upon which a court has already ruled, nor as
     a vehicle for presenting theories or arguments that
     could have been advanced earlier.’” Estate of Gaither
     ex rel. Gaither v. District of Columbia, 771 F. Supp.
     2d 5, 10 (D.D.C. 2011) (quoting SEC v. Bilzerian, 729
     F. Supp. 2d 9, 14 (D.D.C. 2010)).

Order, ECF No. 199 at 3–4.

III. Class Certification

  “The class action is an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432

(2013) (quotation marks omitted). Class certification is

governed by Rule 23 of the Federal Rules of Civil Procedure, and

a plaintiff “must affirmatively demonstrate his compliance with

the Rule.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551

(2011). This is done not by pleading compliance, but by

“demonstrat[ing] . . . compliance . . . in fact.” Id. (emphasis

omitted).


                               21
  A.     Existence of a Class

  “Although not specifically mentioned in the rule, an essential

prerequisite of an action under Rule 23 is that there must be a

‘class.’” Wright & Miller, Federal Practice and Procedure § 1760

(3d ed. 2014); see also Simer v. Rios, 661 F.2d 655, 669 (7th

Cir. 1981) (“It is axiomatic that for a class action to be

certified a ‘class’ must exist.”). Accordingly, a class may be

certified only when “an individual would be able to determine,

simply by reading the [class] definition, whether he or she was

a member of the proposed class.” Bynum v. District of Columbia,

214 F.R.D. 27, 32 (D.D.C. 2003).

  The plaintiffs propose to bring a class defined as:

       [A]ll   persons    [w]ho  were   non-managerial   African
       American and/or Native American Secretarial and/or
       clerical support persons employed at the defendant
       Board at any time from 1989 to the present (the Class
       Period) and; or alternatively, at any time during the
       “class period” as defined by reference to provisions
       of the Lilly Ledbetter Fair Pay Act of 2009, (as
       amended), with respect to each such class member;
       [w]ho, because of racial discrimination, have been
       denied advancement or promotions for which they were
       equally   or    better   qualified   than   their   white
       counterparts who were selected over them one or more
       times, and/or who received lessor advances in salary
       or bonuses or other benefit, including retirement,
       and/or who have been, continue to be, or may in the
       future suffered disparate treatment, or systemic or
       other adverse impact, or systemic adverse treatment
       because of their race, African American or Native
       American, and/or who were similarly situated within
       the definition of F.R.Civ. Rule 23 to one or more of
       the plaintiffs herein, who were damaged, injured, or
       otherwise adversely affected including effects upon
       emotional and physical health, by the Board’s racially


                                  22
       discriminatory policies and practices, or the use of
       race as a prohibited employment practice in decision
       making resulting in an individual or group adverse
       employment practice, as complained of herein; and/or
       by virtue of an unfair and lessor amount of pay in at
       least one paycheck, and who suffered lessor, fringe
       benefits, including retirement annuities, based in any
       part upon that unfair and lesser pay.

Mot. at 4–5 (typographical errors in original; emphasis

omitted). This convoluted definition would render it difficult

for a potential class member to decide whether they may be “a

member of the proposed class.” Bynum, 214 F.R.D. at 32.

  The class definition also makes membership in the class

contingent on an individualized merits determination: Whether

the individual suffered “discrimination,” “disparate treatment,”

or “systemic or other adverse impact, or systemic adverse

treatment.” Mot. at 4. This is problematic because “[u]sing a

future decision on the merits to specify the scope of the class

makes it impossible to determine who is in the class until the

case ends.” Bolden v. Walsh Const. Co., 688 F.3d 893, 895 (7th

Cir. 2012); see also Williams v. Glickman, No. 95-1149, 1997 WL

33772612, at *4 (D.D.C. Feb. 14, 1997) (defining a class so that

membership is contingent on a determination whether individuals

suffered discrimination improperly requires the Court to “answer

several fact-intensive questions”).

  B.     Rule 23(a)

  Plaintiffs also failed to demonstrate their entitlement to



                                 23
class certification under Rule 23(a), which requires that:

       (1) the class is so numerous that joinder of all
       members is impracticable; (2) there are questions of
       law or fact common to the class; (3) the claims or
       defenses of the representative parties are typical of
       the claims or defenses of the class; and (4) the
       representative parties will fairly and adequately
       protect the interests of the class.

These requirements are known respectively as “numerosity,

commonality, typicality, and adequate representation.” Wal-Mart,

131 S. Ct. at 2550. Plaintiffs cannot establish commonality or

typicality.12

       1.   Commonality

     A plaintiff seeking class certification must establish that

“there are questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). The plaintiffs never clearly articulate why

they believe they have demonstrated commonality. See Mot. at 6–

7. According to the defendant, plaintiffs’ proposed class fails

to meet that standard because the discrimination they allege

stems from an array of individualized decisions of low-level

12
  It is also not clear that plaintiffs are adequate
representatives. That requirement seeks in part to ensure that
“the representatives . . . appear able to vigorously prosecute
the interests of the class through qualified counsel.” Twelve
John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir.
1997) (quotation marks omitted). Plaintiffs failed to
participate in class discovery until this Court ordered them to.
That this failure was due to the advice of the lawyer they
selected to represent the class, whom the Court was forced to
sanction personally for his actions, raises doubts as to the
adequacy of their representation. Plaintiffs’ submission of an
untimely and admittedly “inaccurate” expert report adds to these
doubts.


                                  24
supervisors who operate with significant discretion to design

subjective criteria for making personnel decisions.

  The Supreme Court’s decision in Wal-Mart guides the

commonality analysis. In Wal-Mart, as here, the class alleged

that the discrimination they suffered arose from “the discretion

exercised by their local supervisors over pay and promotion

matters.” 131 S. Ct. at 2547. As here, the record established

that “[p]ay and promotion decisions . . . are generally

committed to local managers’ broad discretion, which is

exercised in a largely subjective manner.” Id. (quotation marks

omitted). The Supreme Court found that this did not demonstrate

commonality, which requires that a class’s “claims must depend

upon a common contention” that is “of such a nature that it is

capable of class wide 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. at

2551. The Wal-Mart plaintiffs identified only a general policy

“of allowing discretion by local supervisors over employment

matters”—effectively “a policy against having uniform employment

practices.” Id. at 2554 (emphases omitted). Resolution of the

legality of any one manager’s exercise of discretion, then,

would have no bearing on the legality of any other manager’s

action, absent “some glue holding the alleged reasons for all

those decisions together.” Id. at 2552 (emphasis in original).


                               25
The Supreme Court noted that such glue could be provided “if the

employer ‘used a biased testing procedure’” or upon

“‘[s]ignificant proof that an employer operated under a general

policy of discrimination.’” Id. at 2553 (quoting Gen. Tel. Co.

v. Falcon, 457 U.S. 147, 159 n.15 (1982)).

  In the wake of Wal-Mart, courts “have generally denied

certification when allegedly discriminatory policies are highly

discretionary and the plaintiffs do not point to a common mode

of exercising discretion that pervades the entire company.”

Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013)

(quotation marks omitted). But “Wal-Mart did not set out a per

se rule against class certification where subjective decision-

making or discretion is alleged”; rather, “to satisfy

commonality, a plaintiff must demonstrate that the exercise of

discretion is tied to a specific employment practice, and that

the subjective practice at issue affected the class in a uniform

manner.” Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113

(4th Cir. 2013) (quotation marks omitted). The requisite “glue”

may be provided by “unit[ing] acts of discretion under a single

policy or practice, or through a single mode of exercising

discretion.” In re Countrywide Fin. Corp. Mortg. Lending

Practices Litig., 708 F.3d 704, 708 (6th Cir. 2013).

  Plaintiffs provide no evidence that could support an inference

that the discretionary decisions they challenge are tied


                               26
together by a common policy. Although they vaguely allege the

existence of discriminatory policies and practices, Mot. at 6–7,

the only general policy established by the record is the Federal

Reserve Board’s anti-discrimination policy. See Fields Decl. ¶

8. The only other practice established by the record is that

low-level managers set the standards and methods applicable to

promotions, salary increases, cash awards, performance reviews,

and career-transition plans. See id. ¶¶ 9–13, 16. This shows

nothing but a general policy “of allowing discretion by local

supervisors over employment matters,” which is not enough on its

own. Wal-Mart, 131 S. Ct. at 2554 (emphasis omitted).

  Nor do the plaintiffs supply evidence that supervisors

exercise their discretion in a uniform manner. The plaintiffs

testified that the discrimination they allege was based on the

subjective exercise of discretion by certain managers, and that

many others exercised that discretion in a non-discriminatory

manner. See supra at 7 n.3, 8 n.4. Plaintiffs provided limited

anecdotal evidence of allegedly discriminatory treatment of one

plaintiff, but these anecdotes further demonstrate that the

plaintiffs complain of individualized decisions. Plaintiff

Kathleen Matthews described in an affidavit approximately ten

instances in which she alleges that she was passed over for

promotions in favor of less-qualified Caucasian workers, and

gave an apparently non-discriminatory explanation for one of


                               27
those decisions. See Declaration of Kathleen Matthews, ECF No.

212-8 ¶¶ 1–4, 7–9. The record thus indicates that some

supervisors may have exercised their discretion to discriminate,

others in an arbitrary but non-discriminatory manner, and still

others in a manner plaintiffs felt was fair. There is therefore

no evidence of a uniform “mode of exercising discretion.” In re

Countrywide, 708 F.3d at 708. Nor did plaintiffs establish that

a single high-level manager was involved in many or all of the

challenged employment decisions. See Scott, 733 F.3d at 114

(“Wal-Mart is limited to the exercise of discretion by lower-

level employees, as opposed to upper-level, top-management

personnel.”).

  Plaintiffs largely base their argument on statistical

evidence. To be sure, statistical evidence may be a powerful

tool in proving that a class suffered a common injury. See,

e.g., Moore v. Napolitano, 926 F. Supp. 2d 8, 29–30 (D.D.C.

2013) (certifying a class where plaintiffs submitted

“statistically significant” evidence showing that, pursuant to a

promotion policy, African-American employees were

underrepresented in higher-level positions and were

disadvantaged by the policy). Not all statistical evidence is

relevant to commonality, however. “Statistical disparities

alone,” which might show that a particular group is

underrepresented, “generally are not proof that . . . the class


                               28
as a whole . . . has been discriminated against.” In re Navy

Chaplaincy, No. 7-mc-269, 2014 WL 4378781, at *15 (D.D.C. Sept.

4, 2014). For example, “[i]f [a company] had 25 superintendents,

5 of whom discriminated in awarding overtime, aggregate data

would show that black workers did worse than white workers—but

that result would not imply that all 25 superintendents behaved

similarly, so it would not demonstrate commonality.” Bolden, 688

F.3d at 896.

  Plaintiffs’ statistical evidence falls far short of these

requirements. To begin, Mr. Hampson, plaintiffs’ statistical

expert, appears to agree that he is not qualified. He has no

degree beyond a bachelor’s degree and has never testified as an

expert witness. See Deposition of Richard Hampson (“Hampson

Dep.”), ECF No. 213-4 at 10:17–22, 13:4–15. Nor does Mr. Hampson

have specialized education relating to the use of statistics

regarding employment discrimination. See id. at 16:17–20.

Indeed, he appears never to have prepared statistics regarding

employment discrimination until becoming involved with this

case, id. at 20:3–11, and when asked whether he was “claiming to

be an expert in the preparation of employment discrimination

statistics,” he acknowledged that he “made no such specific

claim.” Id. at 27:12–14. As a result, his calculations did not

use “any differential statistic to measure the statistical

significance of the difference in pay between the plaintiffs and


                               29
white employees.” Id. at 221:20–222:14. This failure to use

anything but rudimentary comparisons renders it “impossible—as a

statistical matter—to draw meaningful conclusions.” Love v.

Johanns, 439 F.3d 723, 731 (D.C. Cir. 2006).

  Mr. Hampson’s conclusions also appear to have shifted. Before

Mr. Hampson submitted his report, plaintiffs’ counsel

represented to the Court in a filing that Mr. Hampson had

conducted an initial study of the personnel data produced by the

defendant and found that “no discernible difference in earnings

figures were evident in the data.” Pls.’ Reply in Supp. of Mot.

to Reconsider, ECF No. 193 at 12. Mr. Hampson then modified his

methodology and testified conflictingly about these changes.

First, he asserted that the initial analysis “wasn’t a study,”

then that he didn’t remember it, and later that he “vaguely

remember[ed] discussing . . . that the data didn’t seem to pop

out, that it was consistently different.” Hampson Dep. at 500:4–

506:5, 524:9–11.

  Mr. Hampson’s qualifications and apparently shifting views

aside, his report does not even attempt to prove facts that

would be relevant to commonality. Mr. Hampson compared the

salaries of eleven of the fourteen named plaintiffs to hand-

picked white employees who were hired in the same year as each

plaintiff. Mr. Hampson terms these groups of individuals hired

in the same year “cohorts,” and purports to show that in each


                               30
cohort, the white employees’ salaries exceed that of the

plaintiff. Mr. Hampson admits, however, that this method cannot

prove that anyone suffered discrimination other than the eleven

named plaintiffs he tracked. See Hampson Dep. at 430:13–16; id.

at 220:6–12. Most glaringly, he was asked “[t]here’s nothing in

your calculations that would shed light on whether different

managers were making decisions different ways[,] [r]ight?” and

responded “[t]hat’s correct.” Id. at 227:21–228:7. Mr. Hampson

thus admitted that he cannot provide the necessary “glue” to

hold together the individualized claims of the class. Even if it

had provided that glue, Mr. Hampson’s analysis addressed only

one of the five practices challenged by the class. He did not

analyze anything related to the class members’ experiences with

promotions, cash awards, performance reviews, or career-

transition agreements. See Hampson Dep. at 213:8–217:5. Mr.

Hampson’s analysis thus provides nothing to support a finding of

commonality.13 Accordingly, plaintiffs have failed to meet their



13
  Mr. Hampson’s methodology also appears to have been
manipulated to achieve the results sought by the plaintiffs.
Indeed, Mr. Hampson appeared to testify that he did not remember
whether his methodology was his idea or that of plaintiffs’
counsel. See Hampson Dep. at 154:7–155:14. Whoever came up with
the idea, Mr. Hampson’s analysis was conducted to ensure that
the comparisons were favorable to the plaintiffs. Mr. Hampson
excluded from his analysis three of the named plaintiffs;
excluded potential Caucasian comparators who were lower paid,
but appeared to share many characteristics with the named
plaintiffs; and included higher-paid Caucasian employees who


                               31
burden of demonstrating that the class raises even one common

question.

     2.     Typicality

  Plaintiffs also fail to demonstrate that “the claims or

defenses of the representative parties are typical of the claims

or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A class

representative satisfies the typicality requirement if the

representative’s “claims are based on the same legal theory as

the claims of the other class members” and her “injuries arise

from the same course of conduct that gives rise to the other

class members’ claims.” Bynum, 214 F.R.D. at 35. Put another

way, a representative’s claims are typical of those of the class

when “[t]he plaintiffs allege that their injuries derive from a

unitary course of conduct by a single system.” Marisol A. v.

Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).

  Plaintiffs’ claims lack typicality for the same reason they

lack commonality: their claims are not about “a unitary course

of conduct by a single system,” id., but individualized courses

of conduct by dozens, if not hundreds, of low-level managers.

See In re Navy Chaplaincy, 2014 WL 4378781, at *17 (where

plaintiffs failed to show “that their claims have even a single

question of law or fact in common with any of the absent class



worked entirely different jobs. See Report of Mary Dunn Baker,
ECF No. 213-3 at 4, 10–12.


                               32
members,” typicality is lacking because “it would be impossible

to conclude that their claims arise from the same course of

events”) (quotation marks omitted). Moreover, plaintiffs

challenge an array of personnel decisions related to five

different employment benefits, yet each plaintiff experienced

different treatment and many did not claim to have been

discriminated against in connection with one or more of those

benefits. See supra at 5–6 & n.2. Accordingly, the putative

class lacks typicality.

  C.        Rule 23(b)

  Plaintiffs also failed to demonstrate entitlement to

certification under any provision of Rule 23(b).

       1.     Rules 23(b)(1) and 23(b)(2)

  The Wal-Mart Court was unanimous in holding that class actions

seeking backpay under Title VII do not belong under Rule

23(b)(2). See 131 S. Ct. at 2557; id. at 2561 (Ginsburg, J.,

concurring in part and dissenting in part). The Supreme Court

reserved judgment on whether Rule 23(b)(2) may be available

where monetary relief is “incidental to the injunctive or

declaratory relief,” id. at 2557, but made clear that claims for

backpay under Title VII are not incidental because the employer

“is entitled to individualized determinations of each employee’s

eligibility for backpay,” including the ability to “show that it

took an adverse employment action against an employee for any


                                   33
reason other than discrimination.” Id. at 2560–61. The Court

found that this limitation applies equally to a (b)(1) class

because it, like a (b)(2) class, is a mandatory class that does

not permit a class member to opt out. See id. at 2558. Because

plaintiffs’ proposed class brings claims for backpay, it may not

be certified under Rules 23(b)(1) or (b)(2).

     2.   Rule 23(b)(3)

  Rule 23(b)(3) provides that a class may be certified where

“the questions of law or fact common to class members

predominate over any questions affecting only individual

members” and “a class action is superior to other available

methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). The predominance

requirement “tests whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.” Amchem

Prods. v. Windsor, 521 U.S. 591, 623 (1997). This inquiry is

similar to the commonality inquiry, but “[i]f anything, Rule

23(b)(3)’s predominance criterion is even more demanding than

Rule 23(a).” Comcast, 133 S. Ct. at 1432. Here, the analysis is

simple: the plaintiffs have not identified a single common

issue. See supra Part at III.B.1. In the absence of any common

issue, it cannot be said that common issues predominate.

Accordingly, a (b)(3) class is also inappropriate.




                               34
IV.   Conclusion

  For the foregoing reasons, the Court DENIES plaintiffs’ motion

for class certification and DENIES plaintiffs’ motion to

supplement the record. An appropriate Order accompanies this

Memorandum Opinion.

  SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           September 29, 2014




                                35
