The opinion of the court was delivered by: Buckwalter, S. J.
Currently pending before the Court is a Motion by Plaintiff Anthony Jackson for Class Action Certification and the Response of Defendant Southeastern Pennsylvania Transportation Authority ("SEPTA"). For the following reasons, the Motion is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2007, Erskin Butler, Herbert Page, and Stephen Holloway filed a class action complaint against SEPTA, Alevistar Group LLC, Triage, Inc., and Anderson Travel, Inc. alleging five counts, disparate impact racial discrimination under Title VII. (Compl., Butler v. SEPTA, Civ. A. No. 07-4161 (Oct. 3, 2007) (the "Butler case").) By way of Order issued March 17, 2008, this Court dismissed four of the counts, leaving only the Title VII claim.
On September 19, 2008, Plaintiff Jackson filed a class action complaint against only SEPTA challenging, under 42 U.S.C. § 1981, the disparate impact of its criminal record policy. (Compl., Jackson v. SEPTA, 08-4572 (Sep. 19, 2008) (the "Jackson case").) On November 12, 2008, this Court ordered that the Butler and Jackson cases be consolidated for purposes of discovery and trial. SEPTA then moved, on November 19, 2008, to dismiss on the ground that the disparate impact theory of discrimination is not available under 42 U.S.C. § 1981. In response, Plaintiff filed an Amended Complaint, dated December 15, 2008, including a single count, under 42 U.S.C. § 1981, alleging intentional discrimination by SEPTA against African-Americans. In the meantime, Plaintiff sought reconsideration of the consolidation order and, on December 17, 2008, the Court ordered that the cases no longer be consolidated.
On December 31, 2008, Defendant moved to dismiss the Amended Complaint, asserting that Plaintiff had failed to properly plead a cause of action for intentional discrimination. Plaintiff responded on January 14, 2009, and Defendant filed a reply brief on January 26, 2009. Before this Court had the opportunity to rule on the motion, the Third Circuit handed down its decision in McGovern v. City of Phila., 554 F.3d 114 (3d Cir. 2009), holding that "the express cause of action for damages created by section 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units." Id. at 121 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989)). By way of supplemental letter, Defendant requested that the Court dismiss Plaintiff's Amended Complaint on the basis of the McGovern decision.
Apparently acknowledging the import of McGovern, Plaintiff submitted a Motion for Leave to File a Second Amended Complaint on February 20, 2009. Upon consideration of both the motion and the response, the Court, via Memorandum and Order dated March 10, 2009, deemed Plaintiff's cause of action viable and granted Plaintiff leave to file the Second Amended Complaint. On March 25, 2009, Defendant filed its Answer and Affirmative Defenses.
The sole count in the Second Amended Complaint asserts a violation of 42 U.S.C. § 1981, which Plaintiff seeks to enforce pursuant to 42 U.S.C. § 1983. The crux of Plaintiff's claim challenges Defendant's "Criminal Record Policy," which purportedly prohibits SEPTA, and all of its paratransit service providers, from hiring any person with a criminal record, including felony or misdemeanor convictions, without allowing any inquiry into the circumstances of the conviction. (Sec. Am. Compl. ¶ 29.) Plaintiff alleges that, for many years, Defendant SEPTA: intentionally imposed [these] screening standards and practices on applicants for jobs as drivers with SEPTA and its paratransit subcontracting companies . . . that have had a disparate impact on African American job applicants and employees with older criminal offenses that have no bearing on the ability of the individual in question to safely and appropriately carry out the responsibilities of a SEPTA bus driver or a paratransit driver.
(Id. ¶ 4.) The resulting disparate impact from this policy was purportedly "brought to light" by a prior judicial ruling challenging the identical policy. (Id. ¶ 7 (citing Douglas El v. SEPTA, 418 F. Supp. 2d 659 (E.D. Pa. 2005)).) Nonetheless, over the years SEPTA has "intentionally selected, instituted and reaffirmed" this "Criminal Record Policy" precisely because of its adverse effects on African-Americans. (Id. ¶ 7.) In essence, the claim asserts that Defendant violated the provisions of section 1981 by instituting and maintaining this criminal record policy with respect to both their hiring of bus operators and their subcontractors' hiring of paratransit drivers. (Id. ¶¶ 56-57.)
Plaintiff filed the current Motion for Class Certification on June 8, 2009, seeking certification of the following class of individuals:
All people who have been terminated or have been denied employment between July 1, 2003 and the present, as a driver for SEPTA and/or any company that has provided paratransit services for Defendant SEPTA as a result of a past felony or misdemeanor conviction that has no direct relevance to that individual's competence as a bus driver or paratransit driver. (Pl.'s Mot. Summ. J. 1.) Defendant responded on June 25, 2009.
B. Class Action Allegations*fn1
1. Requirements for Bus Operator Positions with SEPTA
The evidence reveals that, during the time period relevant to Plaintiff Jackson's claims, SEPTA employed a singular procedure for the hiring of bus drivers. Applicants for employment with SEPTA could apply generally for any future vacancies in the organization, or could apply for a specific bus driver position that had been advertised. (Def.'s Resp. Mot. Class Cert., Ex. B, Decl. of Sue Flower ("Flower Decl."), ¶¶ 4-5, June 24, 2009.) Applicants could register on-line at SEPTA's career opportunities website. (Id. ¶ 6.) In order to register, an applicant had to provide contact information, a social security number, driver's license, career preference, education, and employment history. (Id. ¶ 7.) Additionally, the on-line registration asked applicants to answer the following questions: (1) "Have you ever been convicted of a criminal offense?"; and (2) "If yes, indicate type of offense, penalty and date." (Id. ¶ 8.) Upon completion of this process, an applicant could post on-line for job opportunities. (Id. ¶ 9.)
In order to qualify for a bus driver position with SEPTA, an applicant had to possess a valid driver's license for three to five years, with preference given to those with Class A or Class B commercial driver's licenses. (Id. ¶ 10.) Such qualified individuals were then scheduled for the bus operator assessment. (Id. ¶¶ 11-12.) If an individual received passing marks, SEPTA would conduct a motor vehicle record check and a criminal history record check. (Id. ¶ 12.)
SEPTA's criminal record policy, in effect at the time pertinent to Plaintiff's claims, contained the following relevant provisions:
Conviction records or information about convictions may be considered by the Authority when:
(1) The conviction is for murder, felony, misdemeanor of any degree and
(2) The conviction relates to the applicant's suitability for employment in the position for which he/she has applied.
b. In the event that the Authority decides not to hire the applicant based in whole or in part on the applicant's criminal history record information, which he/she accurately disclosed [i]n his/her employment application, then the Authority shall notify the applicant in writing, setting forth the basis for the rejection.
* * * d It shall be the responsibility of the Senior Director, Human Resources or his/her designee, in consultation with SEPTA's Legal Department and the Deputy General Manager, when necessary, to decide whether or not a specific job applicant with a criminal conviction may be hired. In all instances when an applicant with a criminal record is being considered for a position within Operations, the Chief of Operations must also approve the applicant in writing. In the event an applicant is not hired because of a criminal record, the Senior Director, Human Resources shall advise the applicant in writing of the basis for the decision not to hire.
1. Any job applicant or employee with a criminal record who does not disclose all convictions of any criminal offense, as those terms are defined in this Policy/Instruction, on the job application form, shall be interviewed for possible falsification of employment application. . . .
2. The purpose of the interview is to determine the nature of the criminal offense committed, when it was committed, when the conviction occurred, the number of convictions, whether the application for employment form failed to accurately disclose the conviction of a criminal offense, and whether the employee willfully and knowingly concealed a criminal conviction by failing to list a conviction or convictions on the job application form.
3. If it is determined that the employee has a conviction that would have precluded him/her from employment had this information been accurately disclosed on the employment application form, the employee shall be discharged for falsification of employment application and/or for a criminal record.
4. If the employee has a conviction record which would not have precluded him/her from employment had it been disclosed on the employment application form, the focus of the inquiry shall be whether the employee willfully and knowingly concealed this information. In the event that [various senior managers] . . . determine that the employee willfully and knowingly concealed his/her conviction record, the employee shall be discharged for falsification of employment application.
(Id. ¶ 13, Ex. 1.) The policy went on to chart examples for the types of criminal offense convictions that may preclude an applicant from employment in certain job classifications. (Id.) For all positions requiring operation of any vehicle, SEPTA looked closely at convictions for operation of motor vehicles while under the influence of alcohol and/or drugs, as well as other controlled substance offenses. (Id.)
2. Requirements for SEPTA's Paratransit Driver Positions
SEPTA does not directly hire drivers to perform its paratransit work,*fn2 but rather subcontracts it out to individual paratransit companies. With respect to the individuals employed as paratransit drivers, SEPTA has imposed upon its subcontractors a stricter prohibition on the hiring of drivers with criminal records. By way of example, on August 25, 2004, SEPTA entered into a four-year contract with First Transit, a nationwide passenger transportation services company, to provide paratransit service in Montgomery County Pennsylvania. (Def.'s Resp. Mot. Class Cert., Ex. C., Decl. of Frank Brandis ("Brandis Decl.), ¶ 3 (June 24, 2009).) The contract explicitly provided that:
Contractor shall not employ in any SEPTA-related work under this Contract any person who has a current or past record of any conviction at any time for driving under the influence of alcohol (DUI) vehicular homicide, possession of any drug with the intent to deliver, or for a felony of any kind. In addition, Contractor shall not employ in any SEPTA-related work under this Contract any person who has had any convictions at any time for sexually related offense of any grade whatsoever or for any convictions, whether felony or misdemeanor, that concerns forgery, falsification of records, or false swearing to authorities. * * * In addition to the above, Contractor shall not employ in any SEPTA-related work under this Contract any person who has had a conviction within the past seven (7) years of any misdemeanor not otherwise included with the above paragraph, nor shall Contractor employ any person who is currently on probation or parole for any offense. * * * If an employee accidentally or intentionally fails to disclose required information, SEPTA reserves the right to permanently bar the person from work under this Contract.
In bidding for this contract, however, First Transit provided a proposal with a "System Management Plan," which, in part, set forth the following, more stringent requirements for its paratransit drivers:
* A motor vehicle record exhibiting no more than one moving violation in the past 24 months and no more than one suspension.
* No record of drug or alcohol offenses.
* No misdemeanor criminal record for the past seven years.
* No record of DUI or DWI.
* Not subject to outstanding warrants for arrests. (Brandis Decl. ¶ 6, Ex. 4.) These requirements were established solely by First Transit and not by SEPTA.
Subsequently, on January 5, 2006, SEPTA entered into another four-year contract with First Transit, this time to provide paratransit services in Bucks County, Pennsylvania. (Brandis Decl. ¶ 5, Ex. 2.) Unlike the previous contract, this contract indicated that First Transit could "not employ as a driver in SEPTA-related work any person who indicates on the application form that he or she has a current record of any conviction at any time for DUI or for any felony or misdemeanor," that was listed in a separate attachment. (Id.) Specifically, conviction of the following offenses constituted an automatic disqualification for the position of paratransit driver: aggravated assault, aggravated indecent assault, causing/aiding suicide, causing/risking catastrophe, concealment of a child, crimes involving weapons of mass destruction, criminal coercion, dealing infant child, DUI, endangering child, ethnic intimidation, false imprisonment, false report to law enforcement, false swearing, harassment and stalking, interference with custody of children, intimidation of witness or victim, involuntary deviate sexual intercourse, kidnapping, luring a child, manslaughter voluntary, manslaughter involuntary, murder, neglect of care dependent person, perjury, physical offenses in prison, physical offenses to unborn children, rape, robbery, sexual abuse of children, statutory sexual assault, tampering with evidence/public records, terroristic threats, unlawful restraint, unsworn falsifications to authorities, and vehicular homicide. (Id.) Further, the contract set forth a list of other crimes for which a conviction within seven years of the application was disqualifying. (Id.) First Transit's System Management Plan included the same, previously-established hiring requirements. (Id.)
Ultimately, SEPTA executed contracts for paratransit services with six separate companies, including First Transit, Edens-RTS, Triage, Inc., Community Transport of Delaware County, MV Contract Transportation, and Krapf's Coaches, Inc.*fn3 (Brandis Decl. ¶ 7.)
C. Facts Underlying Named Plaintiff's Case
According to the facts alleged in the Second Amended Complaint, Plaintiff Anthony Jackson, at the time relevant to this litigation, was a forty-four year old African-American male with a five-year employment history driving vans, trucks, and paratransit vehicles. (Sec. Am. Compl. ¶ 20.) Jackson had a criminal history consisting of: (1) several misdemeanor convictions, stemming from a November 1993 incident, including indecent assault, indecent exposure, recklessly endangering another, open lewdness, simple assault, false imprisonment, and unlawful restraint -- all for which he received three years probation; (2) an arrest for an incident occurring in 2000, for which the charges were dismissed; and (3) an arrest for an incident occurring in 2001, for which the charges were nolle prossed. (Id.; Flower Decl. ¶ 20, Ex. 6.)
In 2002, Plaintiff first applied for a position as a bus driver with SEPTA. (Sec. Am. Compl. ¶ 21.) Although he passed all required testing, he was denied employment based solely on his past criminal history. (Id.) Subsequently, in early 2003, Plaintiff accepted employment with Triage, Inc. ("Triage"), a paratransit provider who contracts with SEPTA. (Id. ¶¶ 9, 22.)
On March 21, 2005, Plaintiff submitted an application for employment with SEPTA as a bus driver, but applied only generally for "future vacancies." (Flower Decl. ¶ 15, Ex. 3.) In that application, he denied ever being convicted of a crime. (Id.) Nine days later, he submitted an application for a specific bus operator position, which again denied conviction of any crime, was disregarded by SEPTA due to the absence of any work history. (Flower Decl. ¶16, Ex. 4.) Plaintiff remained employed with Triage until 2005, when he was laid off due to the company's financial difficulties. (Sec. Am. Compl. ¶ 22.)
Plaintiff began working as a paratransit driver for SEPTA subcontractor First Transit in August 2005. (Id. ¶ 34.) As part of his employment application, Plaintiff revealed the full extent of his criminal history. (Id. ¶ 35.) Despite his background, Plaintiff was hired and worked for First Transit without incident until 2006, when a SEPTA supervisor informed him of a change in SEPTA's policy that barred persons with criminal convictions from employment. (Id. ¶ 36.) The supervisor, however, told Plaintiff that, under a "grandfather clause" and because he was an active employee in good standing, he would not be terminated. (Id.)
On March 13, 2006, during his employment with First Transit, Plaintiff submitted a third application for a bus driver position with SEPTA. (Flower Decl. ¶ 17, Ex. 5.) This application disclosed both his work history and the fact that he had been convicted of a criminal offense.*fn4
SEPTA called him in for testing and, in May 2006, Plaintiff took and passed the bus operator assessment. (Id. ¶¶ 17-18.) SEPTA then sought motor vehicle and criminal history background checks on Plaintiff. (Id. ¶ 19.) Upon review of Plaintiff's criminal history and full application, SEPTA disqualified Plaintiff from consideration, notifying him on September 7, 2006. (Id. ¶ 21.)
Due to some confusion on SEPTA's website, as a result of Plaintiff entering different user names for each application, Plaintiff was placed back into the candidate pool for bus operator positions and rescheduled for testing in 2007. (Id. ¶¶ 22-23.) He passed the assessment again, and SEPTA re-requested his motor vehicle and criminal history records. (Id. ¶ 24.) Upon discovering the duplicate testing and record checks, Plaintiff was removed from the candidate pool. (Id. ¶ 25.)
Thereafter, on December 13, 2007, Plaintiff received a call from his supervisor at First Transit, informing him that due to a change in SEPTA's employment policy, he was being terminated, at SEPTA's directive, solely because of his prior criminal record. (Id. ¶ ...