Duane Morris Class Action Review - 2023 - Report - Page 180
employees or of any similarly-situated male comparators, and thus it could not establish
the sufficiency of the claim. For these reasons, the court thereby granted the
defendant’s motion to dismiss without prejudice should the plaintiffs wish to file an
amended complaint.
Finally, in Liu, et al. v. Uber Technologies, Inc., 2022 U.S. Dist. LEXIS 176377 (N.D.
Cal. Sept. 28, 2022), the defense preemptive strike motion also paid dividends. Plaintiff,
a rideshare driver, filed a class action alleging that defendant’s policy that relied on
customer ratings for retaining drivers was discriminatory and created a disparate impact
against minority drivers on the basis of their race in violation of Title VII of the Civil
Rights Act of 1964. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6), and
the court granted the motion. The court determined that plaintiff plausibly alleged that
racial bias could affect customer ratings in the rideshare industry, and so use of those
ratings in employment decisions could cause a disparate impact. Id. at *4. However, the
court reasoned that plaintiff’s allegations fell short of asserting any basis for an
inference that use of the ratings would always cause a disparate impact across a class
of minority drivers. However, the court opined that it would not be impossible for plaintiff
to develop factual allegations to support his claims, and therefore amendment would not
be futile. Accordingly, the court granted defendant’s motion to dismiss without prejudice.
C.
Rulings Denying Class Certification Due To Commonality Issues Under
Wal-Mart
One of the most powerful defenses to class certification is a challenge to commonality
under Rule 23(a)(2). Based on the principles elucidated in Wal-Mart, defendants often
argue that a plaintiff’s motion for class certification should be denied due to the inability
to establish commonality.
In 2022, the leading defense ruling in this context is Brown, et al. v. Houston Community
College, 2022 U.S. Dist. LEXIS 71807 (S.D. Tex. Apr. 19, 2022). In this case, the
plaintiff, a Black employee, filed a class action alleging that Defendant subjected her
and other Black employees to discrimination on the basis of their race in violation of
Title VII of the Civil Rights Act when it enacted a policy to displace Black employees
with White and Hispanic employees. After discovery, the plaintiff filed a motion for class
certification pursuant to Rule 23, and the court denied the motion. The plaintiff asserted
that there were four common questions arising from defendant’s alleged discriminatory
plan, including: (i) whether the defendant created a policy that targeted Black
employees; (ii) whether defendant engaged in a general policy, pattern, and practice of
replacing Black employees with Hispanic or White employees; (iii) whether the policy
constituted actionable race discrimination; and (iv) whether defendant was liable for
damages to the class based on discriminatory conduct. Id. at *6. The defendant
contended that Black employees were the largest group of employees in its workforce
since 2016, that there only had been minor changes in the distribution of Black
employees over a five-year period, and that its executive council of 14 members had six
Black workers. The defendant also asserted that Black employees filled vacancies at
twice the rate of Hispanic employees at the plaintiff’s pay scale. The court found that
common questions did not predominate because individualized inquiries were
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Duane Morris Class Action Review – 2023
