Duane Morris Discrimination Class Action Review – 2024

statements devoid of factual allegations. Accordingly, the Third Circuit affirmed the district court ’ s ruling granting the defendant ’ s motion to dismiss. These decisions are informative for class action discrimination litigation. Notwithstanding their low pleading burdens, plaintiffs are still expected to conjure up enough facts to support their claims. In particular, courts will demand that the plaintiffs connect any adverse employment action they allegedly suffered to their protected characteristic or activity, or risk being rejected outright and asked to start over. In 2023, these rulings made clear that Rule 12 continues to be a vital tool in defense counsel ’ s arsenal as they look to dispose of class claims. 5. Rulings Denying Preemptive Motions To Dismiss Of course, businesses did not prevail across the board on all dispositive motions in 2023. The defendants in Mahone, et al. v. Amazon.Com, Inc ., 2023 U.S. Dist. LEXIS 62529 (W.D. Wash. Apr. 10, 2023), for example, were unable to secure dismissal. The plaintiffs, a group of warehouse employees, brought class claims under the USERRA. One plaintiff alleged she was improperly terminated in willful violation of the statute, while another sought redress for the defendant ’ s failure to reemploy him with appropriate seniority after returning from military service. The defendant unsuccessfully moved to dismiss both counts. As to the first named plaintiff, the court determined the second amended complaint sufficiently alleged knowledge and notice of her military leave to establish a willful violation of the Act and pave the way for pursuing liquidated damages, and dismissal of the defendant ’ s standing objections wholesale. Regarding the claims of the second plaintiff, the court opined that he provided ample support for his allegation that his military services were a substantial or motivating factor in his reduced stature within the company upon returning from military service. The court rejected the defendant ’ s argument that the second plaintiff was not entitled to an automatic promotion, and characterized the defense argument as a distortion of the law and misconstruction of the pleading. The court therefore denied the defendant ’ s motion to dismiss and allowed the litigation to proceed. The defendant ’ s motion to dismiss was also deemed premature in Kantz, et al. v. AT&T, Inc., 2023 U.S. Dist. LEXIS 24158 (E.D. Penn. Feb. 13, 2023), a collective action alleging age discrimination in the execution of a mass company layoff in violation of the ADEA. The defendant moved to dismiss the collective action allegations on the grounds that the plaintiff signed a collective action waiver in exchange for severance benefits. The plaintiff countered, however, that the release was unenforceable, and that the defendant should be prohibited from relying on a waiver that it fraudulently obtained under the doctrine of unclean hands. Id. at *5. The court agreed. It concluded the defendant ’ s actions could rise to the level of “shock[ing]” the court ’ s “moral sensibilities”, sufficient to bar the application of the collective action waiver and deny the defendant ’ s motion to dismiss. Id. at *6-7. On some occasions, however, an initial victory dismissing the litigation can be undone by errors spotted on appeal. Such was the case in One Fair Wage, Inc., et al. v. Darden Restaurants, Inc., 2023 U.S. App. LEXIS 5718 (9th Cir. Mar. 10, 2023), where the plaintiff, a non-profit advocacy group, brought disparate impact claims against the Darden restaurant business under Title VII. The district court granted the defendant ’ s motion to dismiss, concluding that as a non-employee advocacy organization, the plaintiff did not fall within the zones of interests protected under the statute. It did not, however, reach any conclusion on the issue of subject-matter jurisdiction. On appeal, the Ninth Circuit explained that the lower court was obligated to examine the plaintiff ’ s Article III standing before addressing the statutory standing issue. Because neither party briefed the issue, the Ninth Circuit vacated the district court ’ s order and remanded the case for further proceedings, including a determination of Article III standing. At other times, a court may dismiss certain counts while allowing others to survive. In Doe, et al. v. NCAA, 2023 U.S. Dist. LEXIS 1186 (N.D. Cal. Jan. 4, 2023), a group of former college baseball players filed a class action against the University of San Francisco, the National Collegiate Athletic Association (“NCAA”),

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