Duane Morris Discrimination Class Action Review – 2024

The best example of this successful defense strategy was on display in Feeley, et al. v. City Of New York, 2023 U.S. Dist. LEXIS 50809 (E.D.N.Y. Mar. 23, 2023), where the plaintiff, a former automobile mechanic, sought to represent a class of similarly-situated female workers who sought and received insufficient accommodations to express breast milk, and were otherwise discriminated against in violation of Title VII. The defendants challenged the plaintiffs’ motion for class certification on the grounds that Rule 23 ’ s commonality, typicality, and adequacy of representation elements were not met. The court ultimately agreed. It noted that the named plaintiff ’ s personal experience – such as being denied a regular location to express milk, requiring her to physically clock-out while in the middle of pumping, and receiving negative performance evaluations and difficult assignments after complaining – were not alleged as applying to the purported class a whole or as reflective of a larger practice of harassment. Indeed, the plaintiffs failed to offer any statistical or anecdotal evidence of any nursing mother describing her experience, including articulating what requests for accommodations were made and denied. Nor did plaintiff ’ s allegations reflect a system-wide or standard operating procedure of discrimination beyond conclusory allegations of unequal treatment. The court denied the plaintiffs’ motion for class certification because these failures doomed plaintiffs’ commonality and typicality obligations (to say nothing of the propensity of plaintiffs’ counsel for missing deadlines, which the court deemed a “red flag” for proper representation), rendering plaintiff ’ s claims incapable of class-wide resolution. Id. at *11. Speer, et al. v. Ucor LLC , 2023 U.S. Dist. LEXIS 198889 (E.D. Tenn. Nov. 6, 2023), further embodied this trend. In that case, the plaintiffs filed a class action alleging that the defendant ’ s COVID-19 vaccine mandate violated their religious beliefs in violation of Title VII. The plaintiffs specifically asserted that employees who requested religious exemptions were subsequently denied those requests and received adverse employment actions. Id. at *2. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied the motion. Id. at *24. The court found that in analyzing the issue of predominance under Rule 23(b)(3), the individualized nature of determining sincerely held religious beliefs and the reasonableness of accommodations would make it difficult to identify common questions of law and fact that would predominate over individual issues for each plaintiff. Id. at *21-23. Accordingly, the court denied the plaintiffs’ motion for class certification on the basis that common issues did not predominate. Id. at *23. In Edmond, et al. v. City Of Chicago, 2023 U.S. Dist. LEXIS 98174 (N.D. Ill. June 6, 2023), the plaintiffs, nine African-American workers currently or previously employed by the Chicago Department of Water, brought a putative class action against the City of Chicago and several individuals employed by it in 2017, alleging race discrimination and a hostile work environment. The plaintiffs alleged the existence of an ongoing and pervasive “culture of racism” fostered by organizational leadership across five bureaus and various sub-bureaus, treatment plants, and construction sites. Id. at *6. The lawsuit was brought after the City ’ s Inspector General uncovered emails containing racist exchanges between Department commissioners and deputies, which resulted in resignations of two executives. Id. The plaintiffs alleged that the hostile work environment included racially offensive language, threatening gestures, and disparate treatment of Black employees in violation of 42 U.S.C. §§ 1981 and 1983 and Illinois law. They filed a motion for certification of a class that included all Black workers employed by the Water Department since 2011 and three sub-classes for individuals who had been eligible for overtime, those with disciplinary infractions, and those who had been denied promotions. In 2018, the court granted the defendants’ partial motion to dismiss. The plaintiffs then brought a motion to amend the complaint in order to drop the individuals from the suit, which was granted without prejudice. Subsequently, the plaintiffs filed a motion to certify the classes pursuant to Rule 23. The defendants argued that because the plaintiffs were unable to establish a shared work environment in their hostile work environment claim due to the Department ’ s dispersed workforce, the plaintiffs failed to identify a common contention whose resolution would resolve class claims, as required under Rule 23(a)(2) ’ s commonality element. The court agreed with this position. It opined that there was no “evidence of common areas shared by all Department employees or instances of harassment broadcast across the entire Department.” Id. at *13. The court found that the experience of putative class members varied across the Department, with individual claims of discrimination ranging from

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