Duane Morris Discrimination Class Action Review – 2024

verbal to visual conduct, while others alleged bias in duty assignments or disciplinary actions. The plaintiffs additionally contended that a pervasive culture of discrimination permeated the Water Department. They cited statements made by members of the city administration and the Inspector General ’ s investigation, and posited that this was proof of a “ de facto policy of racism” across the workplaces. Id. at *15. The court was not convinced that this had a uniform impact on all the plaintiffs and putative class members to satisfy the commonality question, and it denied the motion for class certification based on failure to meet this threshold under Rule 23(a). The court also rejected the plaintiffs’ arguments for certification of each sub- class based on a pervasively racist culture. The court concluded that disciplinary, overtime, and promotion decisions were made by individual supervisors based on their personal discretion and varied across the Department, and that the plaintiffs failed to show evidence that the same decision-makers were responsible for such actions. Id. at *27. The court was not convinced by Plaintiffs’ expert witness’ use of statistical data to show a disparate impact, noting that similar evidence had not been sufficient to demonstrate commonality. For these reasons, the court denied the plaintiffs’ motion for class certification. But even a defendant ’ s initial victory at the class certification stage can be short-lived, as shown by what transpired in Gordon, et al. v. Jordan School District, 2023 U.S. App. LEXIS 78 (10th Cir. Jan. 4, 2023). In Gordon , the district court certified a class on Plaintiffs’ Fourteenth Amendment Equal Protection Clause claims, but not under Title IX, following allegations that the defendant school districts refused to create separate football leagues for its female students. On a subsequent appeal, the Tenth Circuit derided the district court for confusing commonality under Rule 23(a)(2) with Rule 23(b)(3) ’ s predominance factor. The plaintiffs, according to the Tenth Circuit, properly identified a common factual issue shared between the purported class – namely, a reasonable interest in establishing a girl ’ s football program. While the level of interest and competition might vary between schools – a fact the district court relied upon in denying certification – the Tenth Circuit reasoned that this issue went to predominance, which was irrelevant to the remedy plaintiffs were seeking. Accordingly, the Tenth Circuit vacated the ruling, and ordered the district court to reconsider its denial of class certification. Meanwhile, in Baker, et al. v. UPS, 2023 U.S. Dist. LEXIS 115334 (E.D. Wash. July 5, 2023), the plaintiffs prevailed at class certification. The plaintiffs sought remedies under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) when their employer did not provide paid time off to employees on short term military leave. On their motion for class certification, the plaintiffs pointed to a potential class size of 440 individuals to support numerosity; argued commonality was established by comparing available military leave to similar short term leave, like bereavement; maintained their claims were typical of the class because they challenged the same military leave policy; and represented that class counsel possessed significant experience litigating complex actions. While not disputing the first and last factors, the defendants contested that the underlying issues were sufficiently common across the purported class, which they simultaneously argued undermined typicality. The court rejected these defense arguments. It held that the plaintiffs had done enough at this juncture in the litigation to identify common questions of law and fact. Moreover, the court held that the plaintiffs had satisfactorily shown these common questions predominated over any individualized inquiries, even though the defendants’ affirmative defense for laches could ultimately prove fatal to their claims. Finally, the court found that class certification would be the superior method of adjudication, considering the interests of individual class members, existing litigation, the choice of forum, and the feasibility of managing the case as a class action. For these reasons, the court granted the plaintiffs’ motion for class certification. In a matter regarding disability discrimination claims, the plaintiffs in Lowell, et al. v. Lyft, Inc ., 2023 U.S. Dist. LEXIS 50722 (S.D.N.Y. Mar. 24, 2023), an individual and the organization Westchester Disabled on the Move, Inc., filed a class action alleging violations of the Americans with Disabilities Act (ADA) for failing to provide accessible transportation services for individuals with disabilities. The Magistrate Judge recommended that the court grant in part the plaintiffs’ motion for class certification. On Rule 72 review, the court subsequently adopted the Magistrate Judge ’ s findings and granted the motion. The defendant challenged the plaintiffs’ standing to bring their claims and also argued that the plaintiffs failed to meet the requirements for Rule 23 class certification. The defendant contended that the plaintiffs failed to establish

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