Duane Morris Class Action Review - 2023 - Report - Page 181
necessary as to why each employee was subjected to an allegedly adverse
employment decision. Accordingly, the court found that the plaintiff failed to satisfy the
requirement of commonality (as well as predominance under Rule 23(b)(3)). For these
reasons, the court denied the plaintiff’s motion for class certification.
Another significant ruling in 2022 on this aspect of commonality is Local 3621 Of The
EMS Officers Union, et al. v. City Of New York, 2022 U.S. Dist. LEXIS 212218
(S.D.N.Y. Nov. 22, 2022). In this case, the plaintiffs, a group of emergency medical
service workers, filed a class action alleging that the defendant, the New York City Fire
Department, subjected them to discrimination on the basis of their race, sex, and
gender in granting promotions in the department, in violation of Title VII of the Civil
Rights Act. The plaintiffs filed a motion for class certification pursuant to Rule 23, and
the court denied the motion. It reasoned that the plaintiffs failed to establish a pattern of
bias demonstrating disparate treatment. The plaintiffs asserted that the defendant
discriminated against woman and minority worker during the promotions process, and
provided expert analysis showing that the average length of time for non-white officers
to be promoted was three years longer than similarly-situated white officers. Defendant
argued that the expert analysis was flawed, and that according to its expert data, when
evaluating promotions to captain over the same time period, white men were actually
less likely to be promoted than similarly-situated non-white officers. The court reasoned
that the data did not demonstrate a “significant proof of a general policy of
discrimination.” Id. at *37. It also determined that the analyses offered by the plaintiffs’
expert provided virtually no support for the proposition that the defendant had engaged
in a pattern and practice of gender-based or race-based discrimination. Accordingly, the
court found that the plaintiffs failed to provide significant proof of a pattern or practice of
unlawful discrimination and therefore could not meet the commonality requirement of
Rule 23. For these reasons, the court denied the plaintiffs’ motion for class certification.
D.
Rulings Denying Class Certification Based On Procedural Defenses
Successful defenses to class certification can run the gamut from procedural defenses
to substantive proof. Sometimes procedural defenses underlying the requirements of
Rule 23 are powerful tools to deflect class actions.
Daniels, et al. v. Traditional Logistics & Cartage, LLC, 2022 U.S. Dist. LEXIS 81520
(W.D. Mo. May 5, 2022), is an example of how procedural defenses unrelated to the
merits derailed a class action in 2022. In this case, plaintiff filed a class action alleging
that defendant subjected him to discrimination on the basis of his race (Black) in
violation of Title VII of the Civil Rights Act when it failed to promote him from a casual
driver to a full-time driver. Plaintiff filed a motion for class certification pursuant to Rule
23, and the court denied the motion. In support of his motion, plaintiff claimed that
defendant: (i) chose not to promote or upgrade Plaintiff and others similarly-situated to
the full-time driver position; (ii) failed to utilize a documented system or standard for
selecting which casual drivers to hire as full-time drivers; and (iii) failed to utilize an
application system for casual drivers to apply to become full-time drivers. Following the
filing of his motion for class certification, plaintiff withdrew as the class representative
and his lawyer named a new Plaintiff as the class representative. The court ruled that to
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Duane Morris Class Action Review – 2023
