Duane Morris Discrimination Class Action Review – 2024

claims, arguing that he failed to state a claim under either an intentional discrimination or a disparate impact theory. Id. With respect to the disparate treatment claim, the defendant asserted that the claim failed because the plaintiffs did not demonstrate that they were performing their jobs satisfactorily or that younger employees treated differently from older ones were not terminated. Id. at *6. The court agreed. It held that the plaintiffs failed to state “sufficient, non-conclusory allegations plausibly linking the [adverse] action to discrimination.” Id. at 7. As to the plaintiffs’ ADEA disparate impact claim, the defendant moved for dismissal on the basis that the claim was based on a sub-group of the protected class, given that the ADEA only confers protection to individuals 40 and older. Id. at 8. The court rejected the defendant ’ s argument that the plaintiffs failed to state a cognizable disparate impact claim and explained “to read the disparate treatment provision to prohibit discrimination based on a class of individuals aged forty and over rather than based on age would contradict both the plain language of the statute and the Supreme Court ’ s holding in O’Connor [ v. Consol. Coin Caterers Corp. , 517 U.S. 308, 312 (1996)].” Id. at *10-11. Thus, court denied the defendant ’ s motion to dismiss the plaintiffs’ ADEA disparate impact claim. Id. at *11. On largely similar grounds, the court allowed the plaintiffs’ disparate impact claim under the NYSHRL and further reasoned that the statistical analysis that plaintiff introduced of an alleged statistically significant disparity in the defendant ’ s treatment of workers 50 years-old and older, as well as statistical evidence regarding employees 60 and older, “are enough to survive . . . at the pleadings stage.” Id. at *16. The plaintiffs therefore walked away with a partial victory, insofar as the court permitted them to pursue their disparate impact claims. Id. at *17. Another instance where the complaint was inadequately pled occurred in Dowdy, et al. v. New York City Department Of Sanitation, 2023 U.S. Dist. LEXIS 171625 (S.D.N.Y. Sept. 26, 2023). The plaintiffs sued on behalf of a class of New York City Department of Sanitation employees seeking relief under Title VII and the Equal Protection Act (EPA) due to what they asserted were arbitrary qualifications for higher-paying positions. According to the plaintiffs, these requirements deterred Sanitation Enforcement Agents, comprised primarily of minorities, from applying. The court, however, determined that the plaintiffs lacked standing to challenge the allegedly discriminatory selection policy, and the court dismissed the case. Specifically, no class member applied for the position in question, and while plaintiffs declared these attempts futile, they still failed to show even a single individual was able and ready to pursue the position. Moreover, the court found the complaint ’ s EPA claim was equally unsatisfactory, as it lacked any allegations that the two positions required equal skill, effort, responsibility, or similar working conditions. In light of these deficiencies, the court dismissed the claim, but with leave to amend. In National Center For Public Policy Research, et al. v. Schultz, 2023 U.S. Dist. LEXIS 161680 (E.D. Wash. Sept. 11, 2023), the defendants, Starbucks Corp. and individual board members, successfully dismissed litigation on grounds other than the usual failure to state a claim standard outlined in Rule 12(b)(6). In this shareholder derivative lawsuit, an advocacy group holding less than 1% of Starbucks shares sued for the defendants’ alleged breach of their fiduciary duties when the defendants rejected a demand letter to cease and desist certain diversity initiatives the advocacy group declared “woke.” Id. at *4. In calling out the plaintiffs for pursuing their own political agenda in the lawsuit, the court granted the defendants’ motion to dismiss for failing to satisfy the requirements of Rule 23.1(a), which required the plaintiffs to adequately represent the interest of other shareholders. Because plaintiffs also failed to establish breach of the business judgment rule, the court held that the lawsuit was ripe for dismissal. Finally, in Stouffer, et al. v. Union R.R. Co., LLC , 2023 U.S. App. LEXIS 28443 (3d Cir. Oct. 26, 2023), a former railroad employee appealed the dismissal of his ADEA claims alleging a scheme of discrimination against a putative class of older workers. On appeal, the Third Circuit first addressed whether the plaintiff ’ s claims were precluded by the Railway Labor Act (RLA), which establishes arbitration boards with exclusive jurisdiction to resolve disputes over the interpretation or application of Collective Bargaining Agreements (CBAs) in the railroad industry. Agreeing with the plaintiff, the Third Circuit concluded that simply consulting the CBA did not amount to interpreting it, and therefore did not necessitate preemption. Notwithstanding this holding, the plaintiff failed to resurrect his disparate impact claim, with the Third Circuit holding the complaint lacked any enumeration of statistical disparities and contained only conclusory

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