Why did I receive a Notice?
You were sent a Notice because records indicate that at some time since February 23, 2012, you were terminated or otherwise permanently separated from your position, suspended with or without pay, and/or denied employment with WMATA or a third party WMATA contractor or subcontractor because you failed the WMATA Background Screening Policy. If you are African American and fall within this definition, you could be part of this lawsuit. And, if you suffered a loss of earnings or employment as a result, you have a right to submit a claim for compensation out of the Class Claims Fund established in this case.
This lawsuit (“Lawsuit”) is a class action lawsuit. The Court in charge of this case is the United States District Court for the District of Columbia (“Court”), and the case is known as Erick Little, et al. v. Washington Metropolitan Area Transit Authority, et al., Case No. 1:14-cv-01289-RMC. The persons who sued are called the Plaintiffs. The entities who were sued, known as the defendants, are WMATA, Diamond Transportation Services, Inc. (“Diamond”), Executive Personnel Services, Inc. (“EPSI”), and First Transit, Inc. (“First Transit”).
For purposes of the proposed Settlement Agreement described in this Notice, the Court has conditionally certified a Civil Damages Class (the “Class”) under Rule 23(b)(3) of the Federal Rules of Civil Procedure consisting of all African-American persons who, since February 23, 2012, have been terminated or otherwise permanently separated from their positions, suspended with or without pay, and/or denied employment with WMATA or any third party contractor or subcontractor of WMATA as a result of the Background Screening Policy and who claim to have suffered any loss of earnings or damages as a result.
This notice is to inform you about a Settlement Agreement that was reached in this Lawsuit and is being submitted to the Court for approval. This notice includes information on how to file a claim and/or object to the Settlement.
This package explains the Lawsuit, the Settlement Agreement, your legal rights, what benefit may be available, and how the benefit will be calculated.
What is this lawsuit about?
On December 22, 2011, WMATA adopted a criminal background screening policy called Policy/Instruction 7.2.3 (and later 7.2.3/1), which had screening standards referred to as Appendix A and Appendix C. On January 1, 2013, WMATA added a separate screening standard referred to as Appendix F.
The Lawsuit claims that WMATA’s criminal background screening policy (the “Background Screening Policy”) violated Title VII of the Civil Rights Act of 1964 because it allegedly adversely and disproportionately impacted African Americans who applied for employment with WMATA or WMATA contractors or were suspended or terminated by WMATA or a WMATA contractor as a result of the application of the Background Screening Policy.
On March 31, 2017, the Court certified three separate classes of persons under Rule 23(b)(2) who have been denied employment with WMATA or a third party contractor or subcontractor of WMATA, or terminated or otherwise permanently separated from their positions, suspended with or without pay, and/or denied employment with WMATA or any third party contractor or subcontractor of WMATA as a result of Appendix A, Appendix C, or Appendix F of the Background Screening Policy (the Appendix A Class, the Appendix C Class, and the Appendix F Class, respectively). The Court did not certify a class of individuals who failed Appendix B. On July 1, 2017, WMATA adopted a revised criminal background check policy called Policy 7.2.3/2.
WMATA has denied Plaintiffs’ claims and vigorously defended against Plaintiffs’ allegations. The WMATA Parties maintain that the Background Screening Policy was adopted for non-discriminatory reasons, does not have a disproportionate adverse impact on African Americans, is not discriminatory in its application, and that the lack of disproportionate adverse impact is demonstrated by the high percentage (approximately 75 percent) of African Americans in WMATA’s workforce. WMATA notes that there is no evidence that the Background Screening Policy was adopted for the purpose of excluding African Americans or for any other discriminatory reason. Further, WMATA maintains that the Background Screening Policy is job related and a business necessity to: (a) protect the safety of employees, the public, and transit system users, and (b) ensure public trust in WMATA’s transit system. WMATA’s sole purpose for entering into this Settlement Agreement is to avoid the burden and expense of further litigation.
This Notice does not imply that there has been any finding of any violation of the law by the WMATA Parties or that there could be any recovery in this case. Although the Court has authorized Notice to be given of the proposed Settlement Agreement, this Notice does not express the opinion of the Court on the merits of the claims or defenses asserted by either side in the Lawsuit. In fact, the Court has not ruled on the merits of any of the claims in this Lawsuit, and there are bona fide issues in dispute regarding liability, damages, and relief.
How do I know if I'm part of the settlement?
You are a member of the Civil Damages Class (a “Class Member”) if all of the following are true:
However, to be considered for a payment for civil damages under this settlement, YOU MUST SUBMIT A CLAIM FORM AND AN IRS FORM W-9 TO THE CLAIMS ADMINISTRATOR AT Settlement Services, Inc., P.O. Box 10643, Tallahassee FL, 32302-2643, AND YOUR CLAIM MUST BE RECEIVED AS SOON AS POSSIBLE BUT NO LATER THAN MARCH 8, 2018.
You are still a member of the Appendix A Class, the Appendix C Class, or the Appendix F Class, and covered by this Settlement, even if you did not suffer a loss of earnings or employment as a result of failing the Background Screening Policy, but otherwise satisfied the criteria in 1 and 2 listed above.
Please note that the Background Screening Policy was not applied to persons whose application for employment with WMATA was submitted for screening after July 9, 2017. The date a WMATA contractor ceased applying the Background Screening Policy may vary from that date.
I'm still not sure if I'm included.
If you are not sure whether have been properly included, you can write Class Counsel to verify at the address on the Contact page.
What does the settlement provide?
1. The Settlement Agreement provides for the establishment of the Class Claims Fund for distribution among eligible Class Members who do not elect to be excluded from the Civil Damages Class, who timely complete and submit the claim form and Form W-9 enclosed with this Notice, and who have their claims approved. The total amount available for distribution in the Class Claims Fund will be the balance of $6,500,000 that remains after deduction for attorneys’ fees and expenses approved by the Court (Class Counsel is requesting a payment of $1.625 million), $62,500 in total payments to the Class Representatives and Plaintiffs Davis and Joyce Short, next friend of D.W., a minor, and the costs of Claims Administration (including the mailing of checks to eligible Class members). In addition, WMATA agreed to pay the costs to mail this Notice to you and other members of the Class and certain other persons who may potentially be members of the Class.
2. WMATA adopted a new background screening policy (Policy 7.2.3/2) as of July 1, 2017 (the “2017 Policy”), which includes an individualized assessment procedure. For a period of one (1) year from the date the District Court issues an order approving the Settlement Agreement as contemplated, WMATA will not make any material change to the 2017 Policy (7.2.3./2), including no discontinuation of the exclusions in Appendix A, Section 9 of the 2017 Policy, no discontinuation of the individualized assessment procedure or curtailing of the candidate’s rights in Appendix C of the 2017 Policy, and no additions of offenses or lengthening the time periods resulting in automatic disqualification beyond the offenses listed in Appendix A, Section 4 of the 2017 Policy.
3. As part of the Settlement Agreement, and to facilitate the application of Class members for open positions at WMATA, the parties agreed to include a link to WMATA’s career webpage. This webpage may be used to search and apply online for posted job openings. The link is:
How can I get a benefit?
To receive a payment from the Class Claims Fund, you MUST timely submit as soon as possible but no later than March 8, 2018 (a) a claim using an approved claim form and (b) a fully signed and completed IRS Form W-9, and your claim must be approved.
You have the option of submitting a short form claim or a long form claim. Eligible Class Members who submit short form claims will be entitled to receive a flat payment estimated to be $2,000. Eligible Class members who believe they suffered more than $2,000 in lost wages may, if they wish, submit a long form claim as described below, providing additional documentation to support a payment greater than $2,000.
If you submit a short form claim, you will need to provide a Form W-9 and confirm that (1) you are African American, (2) you failed the Background Screening Policy, and (3) after failing you were denied employment, terminated, or suspended by WMATA or a WMATA contractor. Individuals who submit a short form claim will be eligible to receive a payment of $2,000. A copy of the short form claim and the Form W-9 are available here.
If you submit a long form claim, you will need to confirm that (1) you are African American, (2) you failed the Background Screening Policy, and (3) after failing you were denied employment, terminated, or suspended by WMATA or a WMATA contractor, and you will need to provide a Form W-9 and information and documentation relevant to your claim. This information and documentation will include information about the timing and circumstances when you were denied employment, terminated, or suspended by WMATA or a WMATA contractor, the position at issue, and approximate salary, as well as any evidence of amounts earned in the interim, which will be supported by tax forms, W-2 statements, or sworn declarations. The amount of your approved claim will be based on: (1) when you were denied employment, terminated, or suspended, (2) how much money you may have lost as a result, (3) how much you have earned since that time, (4) the evidence you submit to support your claims, and (5) the total dollar value of all approved claims. Individuals who submit a long form claim with supporting documentation will be eligible to receive the difference between what they could have earned if they had been employed by WMATA or a WMATA contractor for up to two (2) years and what they did earn for a period up to two (2) years, subject to a maximum cap of $40,000. A copy of the long form claim and Form W-9 are available here.
You cannot submit both a long form claim and a short form claim, or receive both a long form claim payment and a short form claim payment.
In the event:
Tax Treatment. Your claim will be reported on Form 1099 and constitutes taxable income but is not wages. You will be solely responsible for payment of any income or other taxes, interest, or penalties owed with respect to the payment. A payment from the Class Claims Fund shall not constitute nor be considered as compensation for purposes of any applicable benefit, bonus, profit sharing, or pension plans, and you will not be entitled to any additional payments or benefits by reason of that payment.
Bankruptcy. If you filed bankruptcy at any time after the date you were denied employment, suspended, or terminated as a result of the Background Screening Policy, then your settlement check, if any, may be made payable jointly to you and the bankruptcy trustee. If you have filed bankruptcy since the date you were denied employment, suspended, or terminated as a result of the Background Screening Policy, it is your obligation to indicate on your claim form (a) the year your bankruptcy case was filed, (b) the court in which it was filed, and (c) the name of the Trustee. You do not need to provide this information if you do not file a claim in this action.
When would I get my benefit?
The Court has given its preliminary approval to the proposed Settlement Agreement. A hearing (the “Fairness Hearing”) will be held before the Court at 9:30 a.m. on April 18, 2018 (or such different or continued date and/or time or location as the Court may, without further notice, direct) to decide whether to give final approval to the Settlement Agreement, whether to approve the above-described payments to Class Representatives and the others identified above, and to deal with such other matters as may properly be before the Court at that time. The hearing will take place in the Courtroom of the Honorable Rosemary M. Collyer, Courtroom 8, E. Barrett Prettyman United States Courthouse 333 Constitution Avenue, NW, Washington, D.C. 20001.
Any person who does not make an objection in the time and manner provided in Section 16 below will be forever foreclosed from making any objection to the matters described herein, unless otherwise ordered by the Court.
What am I giving up to get a benefit or stay in the class?
If the Settlement Agreement is given final approval by the Court, and you have not timely elected to exclude yourself from the Class, all of the Court’s orders in the Lawsuit will apply to you and legally bind you. You will give up, and not be able to sue, continue to sue, or be a part of, any lawsuit involving Covered Claims (defined below).
The “Covered Claims” that will be released are all known and unknown claims, suits, lawsuits, demands, and causes of action which a member of any certified class (and their respective personal representatives, administrators, heirs, successors and assigns) may have or hold against (a) WMATA, any of its affiliates or employee benefit plans and trusts, and any of its or their respective present or former directors, officers, managers, employees, attorneys, administrators, fiduciaries, and agents (and their respective insurers) arising prior to execution of the Settlement Agreement in any way based upon any facts or claims alleged in the Third Amended Complaint filed in this Lawsuit, or (b) any of the WMATA Parties arising out of or based upon application of, or decisions under or concerning the Background Screening Policy. This release will include, but not be limited to, a release of any claims: (1) under the common and statutory laws and Constitutions of Virginia, Maryland, and the District of Columbia; (2) under Title VII of the Civil Rights Act of 1964, as amended, Executive Order 11246, 42 U.S.C. §§1981, 1981A, or 1983, the United States Constitution, the Fair Credit Reporting Act and any other federal law, decision, order, or regulation; (3) under any other federal, state or local law, constitution, regulation, statute, order, ordinance, decision, or common law claim concerning discrimination in employment; and (4) for economic and personal injury, emotional distress, penalties, liquidated and punitive damages, injunctive, declaratory and other equitable relief, employment, lost compensation, and costs and attorneys' fees, including, without limitation, any claim for attorneys' fees and/or costs which may arise or accrue by reason of the settlement of the Lawsuit referred to above. All such Covered Claims will be dismissed with prejudice.
The term “WMATA Parties” refers to (a) WMATA and its present and former direct and indirect affiliates and its employee benefit plans and trusts, (b) any WMATA contractor who employed anyone in the Class, or considered a Class member for employment (as to claims by those individual class members only), including but not limited to the named contractor defendants in this Lawsuit (Diamond, First Transit, and EPSI), and their respective shareholders, owners, subsidiaries, employee benefit plans and trusts, and affiliates, (c) all present and former officers, directors, managers, attorneys, agents, employees, benefit plans, administrators, and fiduciaries, of WMATA; and each such person, business or entity, and their respective insurers, successors, and assigns.
How do I get out of the settlement?
If you wish to exclude yourself from the Civil Damages Class, you must state in writing your desire to be so excluded and send the same to Class Counsel within the required time period. Your request must include: (i) your full name, telephone number, and current address; (ii) your signature; and (iii) a specific statement that you wish to be excluded from the Civil Damages Class and from participating in the proposed settlement set out in the Settlement Agreement.
Your request must be sent as soon as possible and postmarked on or before March 19, 2018, addressed to Class Counsel:
John A. Freedman, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue,
NW Washington, D.C. 20001
With a copy to WMATA’s counsel
Kathleen Kraft, Esq.
THOMPSON COBURN LLP
1909 K Street NW, Suite 600
Washington, D.C. 20006
If you exclude yourself from the Civil Damages Class, you are not eligible to receive any settlement payment as described above, and you will retain the ability to sue for civil damages. However, you will continue to be bound by the Settlement as and to the extent it is applicable to members of the Appendix A Class, the Appendix C Class, and the Appendix F Class.
Do I have a lawyer in this case?
The Court has appointed Erick Little, Timothy McClough, Leroy Quarles, Fitzgerald Stoney, Marcello Virgil, Leon McKenzie, Louia McKenzie, and Gerald Tucker as Class Representatives.
The Court has appointed the following attorneys as “Class Counsel:”
John A. Freedman
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave NW
Washington, D.C. 20001
Dennis A. Corkery
WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS
11 Dupont Circle NW, Suite 400
Washington, D.C. 20036
Rachel M. Kleinman
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, N.Y. 10006
Ajmel A. Quereshi
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.
1444 I Street NW, 10th Floor
Washington, D.C. 20005
Class Counsel represent the interests of the Class, and you will not be charged for their services. You may hire your own attorney to advise you, but if you hire your own attorney, you will be responsible for paying that attorneys’ fees.
How will the lawyers be paid?
Class Counsel will ask the Court for attorneys’ fees and expenses of $1.625 million. These funds are to compensate counsel for their out-of-pocket expenses in litigating the case, and to compensate counsel for their efforts.
Class Counsel will ask the Court to approve service award payments in the amount of (a) $7,500 to each of the Class Representatives, for their service as class representatives, and (b) $5,000 each to Sidney Davis and Joyce Short, next friend of D.W. as heir to Lawrence Whitted (Davis and Lawrence Whitted each assisted Class Counsel and the Class Representatives in the prosecution of this Lawsuit).
WMATA has agreed not to oppose these fees and expenses which, if approved by the Court, will be paid out of the Class Claims Fund.
How do I tell the Court that I don't like the settlement?
If you wish to object to the proposed settlement or any aspect of it, you may submit an objection and appear at the Fairness Hearing and show cause why the settlement should not be approved as fair, reasonable, and adequate. Any objection to the proposed settlement should be sent as soon as possible and will be invalid unless it is filed with the Clerk of the Court on or before March 19, 2018 by mailing a copy to the Court as described below postmarked on or before March 19, 2018. When you file the objection, you must mail a copy to Class Counsel and counsel for WMATA.
You must sign your objection personally or by legal counsel. Your objection must state your full name and current address, as well as the case number (14-cv-1289-RMC). You must also provide copies of any documents you intend to rely upon, the names and addresses of any witnesses who will appear at the Fairness Hearing, and the name of any counsel representing you. Your objection must state why you object to the proposed Settlement Agreement and any reasons supporting your position.
If you intend to appear in person or through your own attorney at the April 18, 2018, Fairness Hearing described in Paragraph 18 below, you must include with your objection a notice of your intention to appear at the hearing and a statement as to who you intend to call as a witness.
You must file your objection with the Clerk of the Court by mailing the same to the Clerk as soon as possible, postmarked on or before March 19, 2018. The address of the Clerk is:
Clerk of the Court
United States District Court for the District of Columbia
E. Barrett Prettyman United States Courthouse
333 Constitution Avenue, NW
Washington, D.C. 20001
You also must mail any objection, along with any notice of intent to appear, to Class Counsel and counsel for WMATA as soon as possible and no later than March 19, 2018. The address for Class Counsel is:
John A. Freedman, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue, NW
Washington, D.C. 20001
The address for counsel representing WMATA in this Lawsuit is:
Kathleen Kraft, Esq.
THOMPSON COBURN LLP
1909 K Street, NW
Washington, D.C. 20006
Any member of one of the classes in this case who does not file and serve an objection in the time and manner described above will not be permitted to raise that objection later.
What's the difference between objecting and excluding?
Objecting is simply telling the Court that you don’t like something about the Settlement Agreement. Excluding yourself is telling the Court that you don’t want to be part of the Civil Damages Class.
When and where will the Court decide whether to approve the settlement?
There will be a “Fairness Hearing” to consider approval of the proposed Settlement Agreement on April 18, 2018, beginning at 9:30 a.m., at the United States District Court for the District of Columbia, E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue NW, Washington, D.C. 20001. The hearing may be postponed to a later date without further notice. The purpose of the hearing is to determine the fairness, reasonableness, and adequacy of the terms of the Settlement Agreement; whether the Civil Damages Class and the Appendix A, Appendix C, and Appendix F Classes are adequately represented by the Class Representatives and Class Counsel; and whether an order and final judgment should be entered approving the proposed Settlement Agreement. The Court also will consider Class Counsel’s motion for an award of attorneys’ fees and expenses, application of a payment to the Claims Administrator for costs and expenses associated with claims administration, and the application for an award of service award payments to the Class Representatives, Davis, and Short.
You will be represented at the Fairness Hearing by Class Counsel, unless you choose to enter an appearance in person or through your own counsel. The appearance of your own attorney is not necessary to participate in the hearing on the fairness of the Settlement Agreement. You will not be personally responsible for attorneys’ fees or cost disbursements except those of your own counsel.
In the event the Settlement Agreement is not approved, or the Settlement Agreement is terminated pursuant to its terms for any reason, including but not limited to WMATA or Plaintiffs exercising its or their right to set aside the Settlement Agreement under specified conditions, all orders, findings, and filings entered in connection with the settlement shall become null and void.
The Court approved the Settlement Agreement on April 27,2018.
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