UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) VERNON ROSS and DEBRA JOSEY, ) on behalf of themselves and all others ) similarly situated, ) ) Plaintiffs, ) ) v. ) No. 16-cv-2508 (KBJ) ) LOCKHEED MARTIN CORP., ) ) Defendant. ) )

MEMORANDUM OPINION DENYING PLAINTIFFS’ MOTION FOR PRE-CERTIFICATION DISCOVERY

This Court previously denied a motion for preliminary class certification and for

preliminary approval of a settlement agreement that Plaintiffs Vernon Ross and Debra

Josey (“Plaintiffs”) filed along with their initial complaint, see Ross v. Lockheed Martin

Corp. (“Ross I”),

(D.D.C. 2017), and in the wake of that

determination, Plaintiffs have filed a Second Amended Class Action Complaint, to

provide additional details regarding the operation of Defendant Lockheed Martin’s

performance review process (“LM Commit”) in support of their claim that Lockheed

Martin has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

and also

, in a manner that can be established, and redressed, on a

classwide basis. (See Second Am. Compl. (“Am. Compl.”), ECF No. 34.) Plaintiffs

have now also requested pre-certification discovery, ostensibly to gather additional information in support of their class claims. 1 (See Pls.’ Mem. in Supp of Mot. for Class

Discovery (“Pls.’ Mot.”), ECF No. 54, at 6, 26.) 2 For the reasons explained below,

neither the additional details that Plaintiffs have provided in the Second Amended

Complaint nor the information that Plaintiffs hope to gather prior to filing their motion

for class certification is likely to assist them in making the required prima facie

showing that their class action plausibly satisfies Rule 23’s certification requirements.

Consequently, this Court filed an Order on May 28, 2020, that DENIED Plaintiffs’

discovery motion. (See Order, ECF No. 63.)

The instant Memorandum Opinion explains the reasons for that order. In short,

the existence of a class action that is plausibly viable is a prerequisite to getting

discovery in aid of a motion for class certification, and Plaintiffs bear the burden of

demonstrating that discovery measures are likely to produce information that

substantiates their contention that they have identified a viable class action. Under the

circumstances presented here, Plaintiffs cannot carry that burden, as this Court made

clear in Ross I,

(holding that Plaintiffs failed to demonstrate

commonality because they did not point to a “testing procedure or other companywide

1 Plaintiffs contend that pre-certification discovery will allow them to present “(a) evidence that Lockheed’s performance appraisal system is an employment policy that applies uniformly to salaried employees throughout the company; (b) evidence that the system is poorly designed and racially biased; (c) evidence of a pattern or practice of intentional discrimination; (d) statistical evidence regarding the impact of the challenged practices and the intentional discrimination on performance appraisal rankings; (e) statistical and other evidence of the resulting racial disparities in pay, promotion, and termination decisions; and (f) evidence sufficient to raise common questions regarding other factual disputes between the parties[,]” including “Lockheed’s cont racts with the federal government to support Plaintiffs’ breach of contract claim[.]” (Pls.’ Mot. at 6, 26.) 2 Page-number citations to the documents that the parties and the Court have filed refer to the page numbers that the Court’s Electronic Filing System (“ECF”) automatically assigns.

2 evaluation method that can be charged with bias[,]” nor did they offer “[s]ignificant

proof that an employer operated under a general policy of discrimination ” (internal

quotation marks and citation omitted).) In other words, pre-certification discovery is

not warranted because, regardless, the facts alleged in Plaintiffs’ complaint concerning

the operation of Lockheed Martin’s performance review process make it manifestly

implausible that the 5,000 African-American Lockheed Martin employees who are

members of the putative class have suffered a common injury that can either be

redressed through a single remedy on a classwide basis or be proven through common

questions of fact that predominate over individualized proof of injury.

I. LEGAL STANDARDS

A. Motions For Pre-Certification Discovery

Courts must determine whether a legal action can be maintained as a class action

as soon as is “practicable” after the complaint is filed. Fed. R. Civ. P. 23(c)(1).

Pursuant to Rule 23, a class action is viable if plaintiffs can demonstrate that their

putative class satisfies the four threshold requirements of Rule 23(a)—numerosity,

commonality, typicality, and adequacy of representation, see Amgen v. Conn.

Retirement Plans & Trust Funds,

(2013)—and also that the proposed

class action fits one of the categories listed in Rule 23(b). As relevant here, one of the

Rule 23(b) categories includes cases where “a single injunction or declaratory judgment

would provide relief to each member of the class,” Wal-Mart Stores, Inc. v. Dukes,

(2011) (citing Fed. R. Civ. P. 23(b)(2)), and another type of Rule 23(b)

class action is one in which “the questions of law or fact common to class members

predominate over any questions affecting only individual members, and . . . a class

3 action is superior to other available methods for fairly and efficiently adjudicating the

controversy[,]” Fed. R. Civ. P. 23(b)(3). Thus, plaintiffs seeking to litigate their claims

as a class action must show (1) numerosity, commonality, typicality, and adequacy of

representation, and (2) either indivisibility of the requested relief, or predominance and

superiority. See, e.g., Wal-Mart,

.

Courts have recognized that the exact “shape and form of a class action evolves

only through the process of discovery.” Wal-Mart Stores, Inc. Wage & Hour Litig.,

(N.D. Cal. 2007) (internal citation and quotation marks omitted).

Cf. Vinole v. Countrywide Home Loans, Inc.,

(9th Cir. 2009)

(“[O]ften the pleadings alone will not resolve the qu estion of class certification and []

some discovery will be warranted[.]”); Mills v. Foremost Ins. Co.,

(11th Cir. 2008) (same); In Re Am. Med. Sys., Inc.,

(6th Cir. 1996)

(same). As a result, courts can permit plaintiffs to flesh out the contours of their

proposed class action for certification purposes by engaging pre-certification discovery,

and discovery is especially warranted in cases where, for example, getting more

information about the plaintiffs’ claims “will resolve factual issues” such as whether a

“set of subclasses exist[,]” Artis v. Deere & Co.,

(N.D. Cal. 2011),

or where there is discoverable information that is “relevant to class certification

[requirements] such as numerosity[,]” Dziennik v. Sealift, Inc., No. 05-cv-4659,

, at *1 (E.D.N.Y. May 23, 2006).

But it is similarly well established that the simple filing of a classwide complaint

does not automatically “unlock the doors of discovery for a plainti ff[.]” Ashcroft v.

Iqbal,

, 678–79 (2009). In fact, trial courts “have broad powers to regulate

4 or prevent discovery and such powers have always been freely exercised.” Brennan v.

Local Union No. 639, Int’l Bhd. of Teamsters, Chauffeurs, War ehousemen and

Helpers,

, 1100 (D.C. Cir. 1974). Cf. Pilgrim v. Universal Health Card

LLC,

(6th Cir. 2011) (affirming a trial court’s pre -discovery strike of class

allegations). To be sure, some courts have historically been “hesitant to delve deep into

the merits of [a] plaintiff’s class allegations” when there has been “no discovery

whatsoever.” Smith v. Wash. Post Co.,

(D.D.C. 2013).

However, recent developments in the law have also reflected the acknowledgment that

proceeding to nationwide class action discovery “can be expensive[,]” and that “a

district court must retain the power to insist upon some specificity in pleading before

allowing a potentially massive factual controversy to proceed .” Bell Atl. Corp. v.

Twombly,

(2007) (internal citation and quotation marks omitted).

These pronouncements confirm that a class-action pleading must present

plausible classwide claims before plaintiffs can proceed with class discovery. See

(finding that “the costs of modern [nationwide] litigation and the increasing

caseload of the federal courts counsel against sending parties into discovery when there

is no reasonable likelihood that the plaintiffs can construct a claim from the events

related in the complaint” (quoting Car Carriers, Inc. v. Ford Motor Co.,

(7th Cir. 1984))). This means that, while “pre-certification discovery should

ordinarily be available where a plaintiff has alleged a potentially viable class claim[,]”

Burton v. District of Columbia,

(D.D.C. 2011), if “the complaint

itself demonstrates that the requirements for maintaining a class action cannot be met,”

then it is reasonable to conclude that “no amount of discovery” can overcome that

5 deficiency, Goode v. LexisNexis Risk & Info. Analytics Grp., Inc.,

, 245–

46 (E.D. Pa. 2012). In other words, “when a nationwide class action is alleged

involving potentially enormous discovery, plaintiff must advance a prima facie showing

that discovery is likely to produce information substantiating the viability of a class [,]”

Schager v. Union Fid. Life Ins. Co., No. 85-cv-8244,

, at *4 (N.D. Ill.

July 6, 1987) (internal citation omitted)—i.e., the plaintiffs must “demonstrate that

discovery measures are likely to produce persuasive information substantiating the class

action allegations[,]” Doninger v. Pac. Nw. Bell, Inc.,

(9th Cir.

1977); see, e.g.,

(finding no abuse of discretion where the district court had denied

pre-certification discovery on the grounds that, “[r]egardless of the discovery that might

have been undertaken, the numerosity and impracticable joinder requirements of section

(a) of Rule 23 could never be met” and, “even if the preliminary prerequisites of section

(a) were met, there was no reasonable possibility that any of the section (b) hurdles

could be overcome”).

Finally, and importantly, in order to determine whether pre-certification

discovery is warranted, courts must refrain from going “beyond a consideration of a

prima facie showing and into a consideration of Plaintiff’s likelihood of success at the

class certification stage.” Kaminske v. JP Morgan Chase Bank N.A., No. 09-cv-918,

, at *3 (C.D. Cal. May 21, 2010). At the same time, “speculation as

to what the broad discovery that [plaintiffs] seek might show is insufficient to meet

their burden of showing that additional discover y is likely to produce substantiation of

the class allegations.” Manigo v. Time Warner Cable, Inc., No. 16-cv-6722,

, at *2 (C.D. Cal. Dec. 29, 2016) (emphasis in original).

6 B. The Substantive Standards That Govern Plaintiffs’ Claims

In order to evaluate properly whether Plaintiffs have plausibly alleged claims

that can be litigated and remedied on a classwide basis, as Rule 23 requires, it is

important to understand the contours of the race discrimination and contract claims that

Plaintiffs have brought against Lockheed Martin. As alleged in their complaint,

Plaintiffs’ classwide discrimination claims involve two distinct theories of race-based

discrimination under Title VII—i.e., disparate impact discrimination (see Am. Compl.

¶ 183 (Count I)) and disparate treatment discrimination (see

(Count II))—and

Plaintiffs also maintain that Lockheed Martin’s performance evaluation scheme

constitutes race-based discrimination in violation of section 1981 of Title 42 of the

United States Code (see

(Count III)), and breaches federal contracts that

require nondiscriminatory treatment of employees (see

¶ 201–06).

As a general matter, pursuant to Title VII, a plaintiff who alleges that she has

suffered employment discrimination may proceed under both “disparate treatment” and

“disparate impact” theories. Ricci v. DeStefano,

(2009); see also

Griggs v. Duke Power Co.,

(1971). “Disparate treatment” in

violation of Title VII “occurs when the employer simply treats some people less

favorably than others because of their race, color, religion, sex, or national origin.”

Anderson v. Zubieta,

(D.C. Cir. 1999) (internal quotation marks,

alterations, and citation omitted); see also 42 U.S.C. § 2000e–2(a)(1). By contrast, a

disparate impact claim arises under that statute when “policies or practices that are

neutral on their face and in intent . . . nonetheless discriminate in effect against a

particular group.” Anderson,

(internal quotation marks and citation

7 omitted); see also 42 U.S.C. § 2000e–2(k)(1)(A)(i). “Both disparate treatment and

disparate impact theories under Title VII are available to an injured plaintiff who seeks

to challenge [alleged] discrimination that results from an employer’s policy of

delegating employment decisions to individual supervisors based on subjective or

discretionary criteria.” Ross I,

. However, because “[i]t is

completely unrealistic to assume that unlawful discrimination is the sole cause of . . .

statistical imbalances in the composition of [an employer’s] work forces[,]” Watson v.

Fort Worth Bank & Trust,

(1988) (plurality opinion), a plaintiff who

claims discrimination based on a disparate-impact theory “must offer statistical

evidence of a kind and degree sufficient to show that the practice in question has

caused the exclusion of applicants for jobs or promotions because of their membership

in a protected group[,]”

(plurality opinion) (emphasis added). See also 42

U.S.C. § 2000e–2(k)(1)(B)(i).

Section 1981 of Title 42 of the United States Code specificially “protects the

right ‘to make and enforce contracts’ free from racial discrimination.” Nanko Shipping,

USA v. Alcoa, Inc.,

(D.C. Cir. 2017) (quoting

(a)).

“To establish a claim under § 1981, plaintiffs must show that (1) they are members of a

racial minority group; (2) the defendant intended to discriminate on the basis of race;

and (3) the discrimination pertained to one of the activities enumerated in the statute [,]”

Dickerson v. District of Columbia,

(D.D.C. 2011), which

include “the making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual

8 relationship,”

(b). 3 “Although the framework for evaluating Section

1981 claims resembles that for Title VII claims, discrimination under Section 1981

must be intentional[.]” Haynes v. D.C. Water & Sewer Auth.,

(D.C.

Cir. 2019) (internal citations omitted). Thus, with respect to the cause of action under

section 1981, a “plaintiff cannot merely invoke his race in the course of a claim’s

narrative and automatically be entitled to pursue relief. Rather, [the] plaintiff must

allege some facts that demonstrate that his race was the reason for defendant’s ac tions.”

Bray v. RHT, Inc.,

(D.D.C. 1990), aff’d sub nom. Bray v. Hebble,

(D.C. Cir. 1992) (internal citation omitted).

Lastly, a plaintiff-employee might be able to maintain a breach of contract claim

with respect to an agreement between their employer and the United States, but only if

the plaintiff is an intended third-party beneficiary of that contract. “[F]ederal common

law of contracts applies to contracts with the federal government,” Wright v. Foreign

Serv. Grievance Bd.,

(D.D.C. 2007), aff’d, No. 07-5328,

(D.C. Cir. Mar. 17, 2008) (internal quotation marks and citation omitted),

which means that “[t]hird party beneficiaries of a Government contract are generally

assumed to be merely incidental beneficiaries[.]” Beckett v. Air Line Pilots Ass’n,

(D.C. Cir. 1993). This is because “[g]overnment contracts by their nature

benefit the public,” Edwards v. Aurora Loan Servs., LLC,

, 151

3 Section 1981 “covers all types of contracts, not just employment contracts .” Patterson v. McLean Credit Union,

(1989). However, Plaintiffs’ claim under section 1981 appears to pertain only to their own employment contracts with Lockheed Martin, for Plaintiffs allege that Lockheed Martin “unlawfully discriminated against African Americans in denying them the enjoyment of all of the benefits, privileges, terms, and conditions of their contractual relationship with Lockheed[.]” (Am. Compl. ¶ 197.)

9 (D.D.C. 2011), and “only in rare circumstances will courts deem individual members of

the public to be intended beneficiaries empowered to enforce [such] contracts in

court[,]”

To establish her special status as a third-party beneficiary, a plaintiff must

“plead facts showing that she is the intended beneficiary of the contract at issue and

that the defendant breached a duty to her created by the third -party contract.” Whiting

v. A.A.R.P.,

, 27 n.5 (D.D.C. 2010), aff’d,

(D.C. Cir.

2011).

II. DISCUSSION

What is at stake at this point in the instant litigation is whether Plaintiffs have

alleged discrimination and contract claims against Lockheed Martin that are plausibly

amenable to class-action treatment, and if so, whether discovery will aid Plaintiffs in

demonstrating that their proposed class action should be certified under Rule 23. The

Court’s north star in answering these questions is the indisputable fact that the entire

point of “the class-action device” is to “save[] the resources of both the courts and the

parties by permitting an issue potentially affecting every [member of the class] to be

litigated in an economical fashion under Rule 23.” Califano v. Yamasaki,

(1979). Yet, try as they might, Plaintiffs have failed to make allegations that would

plausibly permit an economical evaluation of the purportedly discriminatory operation

of the LM Commit system across-the-board and with respect to all of the members of

the proposed class, for the reasons that the Court previously articulated in Ross I and

others that it sketches out below. Instead, the Second Amended Complaint’s allegations

about the LM Commit evaluation process necessarily portend discrimination claims that

will exhibit “fatal dissimilarity among class members[,]” which inexorably leads to the

10 conclusion that “use of the class-action device [would be] inefficient[.]” Amgen,

(internal quotation marks and citation omitted).

Consequently, Plaintiffs are not entitled to discovery, as they have neither

plausibly alleged a “prima facie case” for classwide relief under Rule 23, nor shown

that discovery is “likely to produce” substantiation of their class allegations such that

pre-certification discovery is warranted. Doninger,

. And Plaintiffs’

classwide breach-of-contract claim fares no better, since the Second Amended

Complaint lacks any allegations that would support a plausible inference that the

putative class is an intended third-party beneficiary of the (unidentified) contractual

agreements between Lockheed Martin and the federal government that Plaintiffs are

seeking to enforce.

A. With Respect To Their Discrimination Claims, Plaintiffs Have Not Demonstrated That Discovery Is Likely To Produce Information That Can Substantiate A Prima Facie Case For Classwide Relief Under Rule 23

Plaintiffs seek to pursue race discrimination claims against Lockheed Martin on

a classwide basis due to an alleged companywide discriminatory intent that purportedly

manifests itself as Lockheed Martin’s knowing failure to change what Plaintiffs say is a

common mode of exercising discretion with respect to performance evaluations that has

injured all members of the proposed class. (See Am. Compl. ¶ 5.) 4 The Court is ever

4 For all intents and purposes, the disparate impact and disparate treatment claims that Plaintiffs press in their complaint are indistinguishable, because their pleading alleges a “pattern or practice of systemic intentional discrimination” that takes the form of Lockheed Martin’s allegedly deliberate failure to address the disparate impact of LM Commit. (See Am. Compl. ¶ 5; see also ¶¶ 96–111 (asserting that Defendant’s alleged intentional failure to address the disparate impacts of its performance evaluation system constitutes a form of disparate treatment discrimination).)

11 mindful that “the allegation that such discrimination has occurred neither determines

whether a class action may be maintained in accordance with Rule 23 nor defines the

class that may be certified.” Gen. Tel. Co. of Sw. v. Falcon,

(1982).

And, indeed, “there is [often] a wide gap between (a) an individual’s claim that he has

been denied a promotion on discriminatory grounds, and his otherwise unsupported

allegation that the company has a policy of discrimination, and (b) the existence of a

class of persons who have suffered the same injury as that individual, such that the

individual’s claim and the class claims will share common questions of law or fact and

that the individual’s claim will be typical of the class claims.”

This Court has

concluded that it is simply implausible that Plaintiffs will be able to bridge this wide

gap here, even if discovery is granted, for three main reasons.

First of all, it is crystal clear that Plaintiffs’ complaint does not allege facts that,

if true, would establish that the LM Commit system has injured the members of the

putative class in the same way. See Wal-Mart,

(holding that any class

action complaint must allege facts from which one can infer commonality—which,

simply put, is “the same injury” across the entire class); see also Ross I,

(explaining that, “in order to establish the requisite commonality with respect

to a discrimination challenge to an employee-review system that permits various

managers to exercise discretion, Plaintiffs needed to demonstrate that all managers

would exercise their discretion in a common way” (internal quotation marks and

citation omitted)). Second, even if a common injury across the entire class is plausibly

alleged, that injury is not plausibly subject to being established based on classwide

proof, because it is implausible that “[c]ommon questions of fact” will “predominate”

12 over Plaintiffs’ individualized proof of injury. In re Rail Freight Fuel Surcharge

Antitrust Litig.-MDL No. 1869,

, 252–53 (D.C. Cir. 2013) (citing Fed. R.

Civ. P. 23(b)(3)). Third, given the scope of the class that Plaintiffs have proposed, it is

implausible that Plaintiffs’ alleged common injury could be redressed via one

“indivisible . . . injunctive or declaratory remedy.” Wal–Mart,

(citing

Fed. R. Civ. P. 23(b)(2)) (internal quotation marks and citation omitted).

Thus, while Plaintiffs might well have plausibly alleged individual employment

discrimination claims due to the operation of LM Commit as it is described in the

Second Amended Complaint, Plaintiffs’ pleading is devoid of facts that plausibly

suggest the existence of a common injury that might be proven by answering questions

that are common to the entire proposed class and that predominate over individualized

issues, nor do the complaint’s allegations establish that any such injury could be

redressed through one, indivisible remedy. And access to discovery will not help

Plaintiffs’ quest for class action certification, because, by its nature, LM Commit does

not produce injuries that are common to every member of the class, and its allegedly

discriminatory effect cannot be proven in a predominantly common way or remedied

through the imposition of classwide relief.

1. It Is Implausible That The Putative Class Members Have Suffered The Same Injury And That Their Injury Can Either Be Proven In A Predominantly Common Way Or Be Redressed By One Indivisible Remedy

The indisputable gravamen of Plaintiffs’ complaint is that “the flawed structure

of LM Commit enables subjective decision-making that results in racial disparities.”

(Am. Compl. ¶ 91.) However, as this Court observed in Ross I, nothing in Plaintiffs’

13 complaint plausibly indicates that the alleged “subjective decision-making” that the LM

Commit system facilitates is exercised in a common way across the entire company.

See Ross I,

. Indeed, quite to the contrary, the additional details

in Plaintiffs’ Second Amended Complaint make it abundantly clear that LM Commit

works in a highly subjective, highly individualized fashion that is the antithesis of the

commonality that Rule 23(a) requires.

According to the Second Amended Complaint, as part of LM Commit, “Lockheed

instructs each employee to identify approximately three to five ‘commitments’ each

year[,]” whose respective “importance is to be weighted by the employee,” and each

employee’s “supervisor” then “approve[s] or revise[s]” the employee’s draft

commitments. (Am. Compl. ¶ 28.) With these commitments in mind, at the end of each

calendar year, “[e]mployees and their leaders write comments concerning the

employees’ performance” with respect to both the particularized commitments and

“certain common criteria” or “behaviors,” specified by Lockheed Martin, “upon which

all salaried employees will be evaluated[.]” (Id. ¶¶ 29–30). “Each employee’s leader

then assigns a preliminary numerical rating to each commitment and each desired

behavior” (id. ¶ 31), with “70% of [the employee’s] absolute overall rating” being

determined based upon the preliminary rating for the commitments and “30% of [the

employee’s] overall absolute rating” being determined on the basis of the preliminary

rating for the behaviors (id.). “Once a leader has assigned the employee an absolute

overall rating, the next step in the process for all salaried employees throughout the

company is . . . a series of meetings to rank all employees under a forced distribution

14 system.” (Id. ¶ 36). 5 And, ultimately, Executive Vice Presidents, Senior Vice

Presidents, and the Chief Executive Officer “have authority and control over the final

rankings.” (Id. ¶ 39).

Thus, the complaint’s broad-brush suggestion that each Lockheed Martin

employee is evaluated under the same LM Commit system (see Am. Compl. ¶¶ 23, 26),

and its observation that LM Commit’s evaluation process involves some common

criteria (see

¶¶ 29–30), are not sufficient to make it plausible that the every class

member suffers the same injury from the operation of Lockheed Martin’s evaluation

scheme. That is, notwithstanding Plaintiffs’ characterizations, the complaint’s specific

allegations concerning the operation of LM Commit demonstrate that (1) individual

supervisor discretion pervades the entire evaluation system (see id. ¶¶ 31, 36–38),

(2) there are many different supervisors who exercise discretion across the entire

putative class—i.e., no single decisionmaker evaluates each member of the class (see id.

¶ 39), and (3) each employee has a say in crafting most of the specific criteria with

respect to which he or she will be evaluated (see id. ¶ 28), such that the inherent

structure of Lockheed Martin’s performance evaluation system is the opposite of a

companywide policy that can plausibly generate a classwide discriminatory outcome for

5 The Second Amended Complaint alleges that, before 2015, “groups of managers and/or executives[,]” which could include as many as “20 or more managers or as few as 5 managers” depending on the number of employees to be evaluated, “arrived at relative overall tier rankings for employees in the same level who were compared to each other and , ultimately, forced all employees into a predetermined company-wide distribution.” (Am. Compl. ¶ 37.) But beginning “the fall/winter of 2015,” “leaders preliminarily assess employee performance just as they did before 2015,” with the difference that these leaders “then meet with one another to compare employees within the same organizational structure (business unit or market segment), as opposed to employees within the same level across business areas[.]” (Id. ¶ 38.) At that point, Directors “review and approve or change the rankings that have been assigned by leaders” and Vice Presidents “review and approve or change the overall rankings within business units or market segments[.]” (Id.).

15 the purpose of Rule 23. And the impropriety of classwide claims with respect to such

an evaluation system is well established, for “Wal-Mart tells us that local discretion

cannot support a company-wide class no matter how cleverly lawyers may try to

repackage local variability as uniformity.” Bolden v. Walsh Constr. Co.,

(7th Cir. 2012). Thus, LM Commit differs substantially from the other kinds of

policies that Plaintiffs highlight and that other courts have found to allege plausible

commonality among the class members. (See Pls.’ Reply Mem. in Supp. of Mot. for

Class Discovery, ECF No. 56, at 20.) 6

Even if this Court were to conclude that Plaintiffs’ amended complaint plausibly

alleges that every member of the class has suffered a common injury (it does not),

Plaintiffs’ allegations also make it implausible that the alleged race discrimination

could be proven on a classwide basis, such that common questions would predominate

over individualized issues, as Rule 23(b)(3) requires. This is because Plaintiffs’ class

definition includes nearly all of Lockheed Martin’s African-American employees,

irrespective of how, why, or whether the LM Commit system actually injured them.

(See Am. Compl. ¶ 171 (proposing a class that consists of “[a]ll African-American

salaried non-represented employees below the level of Vice President (levels 1 through

7) employed by Lockheed in the United States at any time during the liability

6 For instance, in Kassman v. KPMG LLP,

(S.D.N.Y. 2013), Judge Furman concluded that it was “plausible that plaintiffs will come forth with sufficient evidence at the class certification stage to demonstrate commonality[,]”

, because the complaint alleged that eac h employee was evaluated “using a common standard known as ‘The KPMG Way[,]’” and all employees were subjected to the same challenged flexible work schedule policy and the same allegedly discriminatory policy of automatically demoting women “who transfer t o the United States from an international office[,]”

16 period.”).) For example, the class definition presumably includes African-American

employees who are perfectly situated and satisfied at Lockheed Martin, such as those

employees who have been promoted (though not yet to Vice President), and also those

African-American employees whose tier rankings actually reflect their on-the-job

performance, such that they have no plausible claim that LM Commit resulted in

discriminatory treatment or had a discriminatory impact with respect to them. 7

In this regard, even the two named Plaintiffs appear to have had different

experiences when it comes to the actual operation and impact of LM Commit.

(Compare

¶¶ 169–70 (alleging that Ross, one of the named plaintiffs, received “low

to middling ratings” which led “Lockheed not to tap him on the shoulder to become a

Vice President” and eventually to “RIF” him, at which point Ross “unsuccessfully

applied to over 40 jobs within Lockheed Martin, the majority of which were at his

current level of Director and some of which were below the Director level ”) with id.

¶¶ 13, 162, 167–68 (alleging that Josey, the other named plaintiff, “has been employed

by Lockheed since 1994” and that “the absence of a history of consistently high or

exceptional performance appraisals [] negatively affect[ed] her ability to advance at

Lockheed”—for example, in 2015, her “overall ranking placed her in the second out of

four tiers, not the top tier”—and, even though she “applied for at least 55 positions at

7 For purposes of “monetary relief only,” and not with respect to the other types of relief sought, the complaint excludes from the class definition “individuals who did not receive any performance evaluations during the liability period with a tier ranking below ‘s ignificantly exceeded commitments’ while employed at Lockheed.” (See Am. Compl. ¶ 171.) But even with this exclusion, the class definition is still fatally broad, for it includes employees who received the ranking they deserved because they actually performed at a below-average or average level, and it also includes employees who received some (but not all) above-average tier rankings during their tenure with the company.

17 Lockheed,” some of which “would have been promotions[,]” she “was selected for

interviews for only seven positions” and ultimately remained in her role).) Any fair

determination of whether or not either of the two named Plaintiffs have actually

suffered discrimination due to the operation of LM Commit would most certainly

require an evaluation of their individual circumstances, including an assessment of

whether LM Commit led to evaluations that were not actually reflective of their

performances.

Thus, in persistently pressing their proposed class action, Plaintiffs have failed

to account for how discrimination cases are actually established when the claim

involves an allegedly discriminatory and discretionary performance-evaluation scheme,

and Plaintiffs have also essentially ignored the potentially wide variation between the

different evidentiary showing that will be needed with respect to the spectrum of

individual African-American employees at Lockheed Martin. Those African-American

Lockheed Martin employees who claim that they were entitled to a different score than

they ultimately received under the multi-faceted LM Commit system will have different

allegations (involving different proof) than those African-American Lockheed Martin

employees who admittedly received a fair final score based on their actual performance

but maintain that there was discriminatory treatment of them by individual evaluators at

some point during the process, and still others might assert that they received the score

that they deserved based on the non-discriminatory subjective judgments of the

evaluators but that they were somehow injured by the evaluation process in some other

respect. At the end of the day, each class member would ultimately have to present

their particular circumstances in order to establish successfully whether and to what

18 extent the LM Commit system injured him, and that situation unquestionably defeats the

predominance that is necessary for a class action to be maintained. Tyson Foods, Inc. v.

Bouaphakeo,

(2016) (clarifying that the predominance

prerequisite is not satisfied if “members of a proposed class will need to present

evidence that varies from member to member” (internal quotation marks omitted)). In

other words, a class action cannot be sustained where, as here, Plaintiffs cannot “prove,

through common evidence, that all class members were in fact injured[,]” and that each

was subjected to discrimination in the same way, because their the discrimination

claims “turn[] on individualized proof of injury, [for which] separate trials are in

order[.]” In re Rail Freight Fuel Surcharge, 725 F.3d at 252–53. Cf. In re Johnson,

(D.C. Cir. 2014) (certifying a class of all African-American Special

Agents who had bid for promotion to a GS-14 or GS-15 and were not promoted, where

the Director of the Secret Service “made [all] final promotion decision[s]”). 8

Nor is it plausible that the proposed class members’ injuries could be redressed

through one indivisible remedy for the purpose of Rule 23(b)(2). 9 In this regard,

8 This is not to say that, to proceed as a class, Plaintiffs must eventually “prove that each element of [their] claim is susceptible to classwide proof.” Amgen,

(emphasis added; internal quotation marks omitted). But the key predominance issue is “the relation between common and individual questions in a case[,]” Tyson Foods,

, and there is no Rule 23(b)(3) predominance when there is no plausible allegation that “ common evidence [will] show [that] all class members suffered some injury[,]” In re Rail Freight Fuel Surcharge,

(emphasis in original), or where it is implausible that the alleged class is “ sufficiently cohesive to warrant adjudication by representation[,]” Amchem Products, Inc. v. Windsor,

(1997). 9 In their “Prayer for Relief,” Plaintiffs “respectfully request” that this Court: “Declare that the practices described in this Complaint exist at Lockheed and are unlawful”; “Order Lockheed to adopt policies and practices designed to end discriminat ory treatment of African-American employees and/or practices that have a disparate impact adverse to African -American employees”; “Award back pay, bonuses[,] and other job benefits to make the Plaintiffs and Class members whole ”; “Award front pay to the extent that Plaintiffs and Class members cannot be placed in the positions that they would have occupied but for the discrimination”; and “Order such and further relief as the Court deems just and

19 Plaintiffs request classwide declaratory and injunctive relief for “all African-

American[s] . . . employed by Lockheed in the United States at any time during the

liability period.” (Am. Compl. ¶ 171 (emphasis added).) But given that Plaintiffs’

class definition sweeps so broadly as to include former employees, it is hard to see how

the Court could craft an “indivisible” remedy, whether declarative or injunctive, that

would apply to the “whole” class, as is necessary to sunstain a valid (b)(2) class. Wal-

Mart, 564 U.S. at 362–65. Indeed, with the exception of those class members who

would be seeking reinstatement, former employees “generally lack[] standing to seek

injunctive or declaratory relief against [their] former employer, as there is no prospect

that [they] will be injured in the future.” Kassman v. KPMG LLP,

,

465–66 (S.D.N.Y. 2013); see also Walsh v. Nev. Dep’t of Human Res.,

(9th Cir. 2006) (same). Consequently, whatever injunctive or declaratory relief

this Court could give to current employees of Lockheed Martin would not (and could

not) cover Ross, one of the named plaintiffs, who is a former employee not seeking

reinstatement. (See Am. Compl. ¶¶ 12, 169–70). And this alone makes Rule 23(b)(2)

indivisibility plainly implausible.

2. Pre-Certification Discovery Will Not Cure These Defects

In response to this Court’s previously articulated concerns about the viability of

the proposed class action, Plaintiffs’ principal argument is that they should be allowed

to conduct pre-certification discovery so that they can “show in their motion for class

certification that there will be common answers to at least some of [their] disputes[.]”

proper.” (Am. Compl. at 55–56.)

20 (Pls.’ Mot. at 16.) Thus, Plaintiffs essentially maintain that any analysis of whether

their amended complaint plausibly alleges the Rule 23 requirements is “premature[.]”

(Pls’ Notice of Supp. Authority ECF No. 57, at 1; see also Pls.’ Reply Mem. in Supp. of

Mot. for Class Discovery, ECF No. 56, at 14.) As a general matter, it might seem

entirely reasonable to permit a plaintiff who allegedly observes disparate outcomes in a

workplace, and who claims that unlawful discrimination has caused those disparities, to

marshal the formidable force of the Federal Rules’ discovery process to ferret out

potentially problematic employment practices. But pre-certification discovery is not an

opportunity to engage in a “fishing expedition” concerning company policies that

cannot plausibly result in a common injury across the putative class. Flores v.

Starwood Hotels & Resorts Worldwide Inc., No. 14-cv-1093,

, at *3

(C.D. Cal. May 18, 2015). And, here, Plaintiffs’ allegations about LM Commit on their

face render classwide injury implausible, for the reasons discussed above.

Put another way, it is the nature of the allegedly discriminatory policy that

Plaintiffs wish to explore that makes it clear to this Court that no amount of discovery

would make Plaintiffs’ class allegations viable, and what is at stake here is a

foundational problem that transcends a mere concern over whether Plaintiffs’ Title VII

and Section 1981 class allegations have a sufficient factual basis. Instead, by their own

terms, Plaintiffs’ allegations about the LM Commit system are such that classwide

injury is implausible, even if Plaintiffs’ description of the system’s operation is

factually accurate. And, as a result, Plaintiffs have not carried their burden of

presenting a plausible prima facie case with respect to their Title VII and section 1981

claims.

21 Finally, the Court also takes issue with Plaintiffs’ suggestion that the

deficiencies this Court has identified with respect to the viability of its proposed class

action could be cured by crafting a not-yet-defined issue class under Rule 23(c)(4).

(See Am. Compl. ¶ 180.) Again, the only thing that the members of the putative class

appear to have in common is that they are current and former African-American

employees of Lockheed Martin, and were thus evaluated pursuant to the highly

individualized LM Commit system, just like all of Lockeheed Martin’s other

employees. And the LM Commit system contains so many levels of subjectivity

(including the employee’s own subjective assessment of the characteristics that are to

be evaluated) that it simply cannot be said to operate in the same manner across the

entire workforce or any subgroup thereof, much less produce a common injury that can

be established by common proof, such that the answer to the collective question of

“why did I receive this rating/ranking as part of the LM Commit process?” leads to a

single answer that predominates over individual issues. Cf. Wal-Mart,

(“Without some glue holding the alleged reasons for all those decisions together, it will

be impossible to say that examination of all the class m embers’ claims for relief will

produce a common answer to the crucial question why was I disfavored.” (emphases in

original)). Thus, even though the D.C. Circuit has not yet determined whether an issue

class can be deployed to derogate from a class’s lack of predominance, see In re

Johnson,

, there is no question that Rule 23(c)(4) is a “discretionary, not

mandatory” tool, In re Brewer,

(D.C. Cir. 2017), and one that is of

no help where, as here, it is entirely implausible that any material common question

exists, see, e.g., Valentino v. Carter-Wallace, Inc.,

(9th Cir. 1996).

22 Stated simply, the problem with Plaintiffs’ Title VII and Section 1981 classwide

discrmination allegations is not that they lack a sufficient factual basis (which might be

cured with the benefit of additional discovery), but rather that the nature of the

performance review system at issue is such that a classwide injury and/or classwide

proof and/or an indivisible remedy is implausible. Therefore, Plaintiffs have failed to

demonstrate that they can plausibly satisfy the requirements of Rule 23, such that

discovery can potentially boost their certification efforts from plausible to proven .

B. Plaintiffs Fail To Allege A Plausible Class Claim For Breach Of Contract Because They Allege No Facts To Support The Allegation That They Are Third-Party Beneficieries

With respect to their class-action contract claim, Plaintiffs insist that they are

“third party beneficiaries of Lockheed’s contractual provisions requiring equal

employment opportunity and affirmative action” (Am. Compl. ¶ 201), and they argue

that they need discovery so as to “seek[] Lockheed’s contracts with the federal

government to support Plaintiffs’ breach of contract claim” (Pls.’ Mot. at 26). Even

setting aside the entirely speculative nature of a breach-of-contract claim that is based

on a particular agreement in a contract that Plaintiffs are not able to identify, here,

Plaintiffs have also failed to make a non-speculative allegation that the supposed anti-

discrimination provisions in the unidentified contracts between Lockheed Martin and

the federal government were plainly intended to create a duty towards the class

members, as is necessary to support any plausible claim that Plaintiffs are third-party

beneficiaries of said contracts.

Plaintiffs’ amended complaint alleges no facts that plausibly support the

existence of the requisite clear intent to allow Plaintiffs to sue for the breach of any

23 contracts between Lockheed Martin and the federal government. Instead, the complaint

merely surmises that “the overriding objective of the [Equal Opportunity] clauses in the

contracts between Lockheed and the United States Government was to protect the rights

of workers employed by federal contractors . . . and to advance their access to job

opportunities through affirmative action.” (See, e.g., Am. Compl. ¶ 205.) But it is by

now well established that, to show the requisite clear intent under the circumstances

presented here, it is not sufficient to appeal to “a contract’s recitation of interested

constituencies, vague hortatory pronouncements, statements of purpose, explicit

reference[s] to a third party, or even a showing that the contract operates to the third

parties’ benefit and was entered into with them in mind.” Edwards,

; see also Chancellor Manor v. United States,

(Fed. Cir. 2003)

(holding that Plaintiffs must allege that “the contract not only reflects an express or

implied intention to benefit the party, but that it reflects an intent to benefit the party

directly[.]” (emphasis in original)). And, indeed, “only in rare circumstances will

courts deem individual members of the public to be intended beneficiaries empowered

to enforce those [government] contracts in court.” Edwards,

.

Plaintiffs offer rank speculation about the existence of contracts between

Lockheed Martin and the federal government, which may or may not include anti-

discrimination clauses that may or may not directly establish that Plaintiffs are the

intended third-party beneficieries of those contracts. (See Am. Compl. ¶ 204 (“Upon

information and belief, Lockheed and the United States government have entered into

numerous contracts containing an EO clause” and “[e]ven if the qualifying contracts do

not contain such clauses, the applicable regulations provide that EO clauses are deemed

24 included in all qualifying contracts and subcontracts by operation of law”).) And this

effort to fashion a classwide contract claim is obviously a bridge too far. As this Court

explained during the motions hearing, Plaintiffs “can’t make a claim based on a

speculative view of what might be in a contract[.]” (Hr’g Tr., ECF No. 43, at 60:16–

17.) They have likewise failed to “nudge[] their [breach of contract] claim[] across the

line from conceivable to plausible,” Twombly,

, so as to carry their

burden with respect to seeking pre-certification discovery.

III. CONCLUSION

Plaintiffs’ discrimination claims pertain to a highly individualized performance-

evaluation system that, by its nature, does not plausibly give rise to a classwide

common injury that can be evaluated based on common proof or that can be redressed

by ordering a single, indivisible remedy. And because Plaintiffs have now twice failed

to make plausible allegations with respect to the viability of their putative class under

Rule 23, the only benefit of pre-certification discovery would be to commence a fishing

expedition for new allegations concerning the effects of Lockheed Martin’s evaluation

scheme, which would ultimately do little to shore up Plaintiffs’ Rule 23 showing. It is

clear beyond cavil that a plaintiff must satisfy Rule 8’s pleading requirements before

discovery is warranted, and that the mere filing of a complaint “does not unlock the

doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal,

556 U.S. at 678–79 (internal quotations omitted). Thus, this Court declines these

Plaintiffs’ invitation to relax the plausibility requirement in the context of Rule 23 to

the point where discovery becomes presumptive upon the filing of a class complaint.

25 The bottom line is this: in this Court’s view, it is entirely implausible to infer

that Plaintiffs’ proposed 5,000-member class has suffered a common injury from

Lockheed Martin’s implementation of LM Commit (as Plaintiffs describe that system),

and because it is likewise implausible to conclude that any such common injury could

be redressed for each member of the class through a single remedy, or could be proven

through common questions of fact that predominate over individualized proofs of

injury, Plaintiffs have not alleged that a plausible viable class exists under Rule 23, as

is necessary to have a plausible prima facie case for class-action certification that

warrants further discovery. Accordingly, as set forth in the Court’s Order of May 28,

2020, Plaintiff’s motion for pre-certification discovery is DENIED.

DATE: July 21, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

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