Duane Morris Class Action Review - 2023 - Report - Page 178
While such defense motions are typically disfavored, the strategy worked in Genc, et al.
v. Imperial Pacific International (CNMI), LLC, 2022 U.S. Dist. LEXIS 188336, (D.N. Mar.
I. Oct. 14, 2022), a class action filed in federal court in the Northern Mariana Islands, an
unincorporated territory of the U.S. consisting of 14 islands in the northwestern Pacific
Ocean. The plaintiffs were H-2B temporary foreign worker program construction
workers hired to build the Imperial Palace casino/hotel resort in Garapan, Saipan in the
Northern Mariana Islands. The plaintiffs filed a class action alleging that Defendant
subjected them to discrimination on the basis of their national origin (Turkish) in
violation of Title VII of the Civil Rights Act when they were paid less per hour than
employees of other national origins. Defendant filed a motion to dismiss pursuant to
Rule 12(b)(6), and the court granted the motion. The court determined that Plaintiffs
failed to plead sufficient facts to plausibly satisfy the fourth element of the prima facie
case of employment discrimination, i.e., that similarly-situated employees not in their
protected class received more favorable treatment. The court reasoned that even
construing the complaint in the light most favorable to the plaintiffs, they had not plead
sufficient facts to establish that Italian and Taiwanese workers had “similar jobs” and
displayed “similar conduct” to plaintiffs. Id. at *12-13. The court rejected the plaintiffs’
assertion that an analysis of comparators was inappropriate at the pleading stage. It
reasoned that a viable class action complaint must include allegations that similarlysituated individuals were being treated more favorably or other facts giving rise to an
inference of discrimination. For these reasons, the court determined that the plaintiffs
failed to plead facts that show non-Turkish, similarly-situated individuals were paid more
than plaintiffs, and thereby granted defendant’s motion to dismiss the class claims.
The court in Abdur-Rahman, et al. v. Wells Fargo Bank N.A., 2022 U.S. Dist. LEXIS
28152 (W.D.N.C. Feb. 16, 2022), similarly granted a preemptive motion to dismiss.
Plaintiff filed a class action alleging that defendant subjected African-American
employees to discrimination on the basis of their race in violation of Title VII of the Civil
Rights Act due to background screening parameters and a blanket exclusion policy that
had an adverse effect on African-Americans. Defendant filed a motion to dismiss on the
basis that plaintiff’s complaint contained only threadbare recitals of the elements of a
disparate impact class claim and did not allege any facts that African-Americans were
disqualified more than other races under a specific policy or practice, or a causal
connection between the policy and disparate impact. Id. at *17. The court found that
although plaintiff identified a specific blanket exclusion background check policy that
allegedly resulted in a disparate impact, she failed to provide any factual allegations as
to the disparate impact or how it is related to the policy. The court therefore ruled that
plaintiff failed to establish the elements of a disparate impact claim. For these reasons,
the court granted defendant’s motion to dismiss plaintiff’s class claim.
Smalls, et al. v. Amazon.com Services LLC, 2022 U.S. Dist. LEXIS 21422 (E.D.N.Y.
Feb. 7, 2022), also ruled favorably on a preemptive motion to dismiss the plaintiff’s
class claims. The plaintiff filed a class action alleging that the defendant terminated his
employment on the basis of his race (African-American) and because he opposed
racially discriminatory COVID-19 policies in violation of 42 U.S.C. § 1981, the New York
State Human Rights Law (NYSHRL), and the New York City Human Rights Law
(NYCHRL). The defendant filed a motion to dismiss pursuant to Rule 12(b)(6), and the
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Duane Morris Class Action Review – 2023
