Duane Morris Class Action Review - 2023 - Report - Page 184
alleged EPA violations. The court therefore granted in part plaintiffs’ motion for
conditional certification.
Another decision in 2022 from California – Palmer, et al. v. Cognizant Technology
Solutions, Case No. 17-CV-6848 (C.D. Cal. Oct. 27, 2022) – shows how targeting a
narrow employment practice pays dividends for plaintiffs in securing class certification.
In this case, plaintiffs filed a class action alleging that defendant, an information
technology and consulting company, discriminated against non-South Asians and nonIndians in hiring, promotion, and terminations, and brought claims for disparate
treatment claims under 42 U.S.C. 1981 and Title VII of the Civil Rights Act and for
disparate impact under Title VII. Plaintiffs filed a motion for class certification pursuant
to Rule 23, and the court granted in part the motion. Plaintiffs sought certification of two
termination sub-classes and a hiring sub-class of individuals terminated or not offered a
position on the basis of being not of South Asian or Indian national origin. Defendant
hired individuals on a contract basis to service client contracts. Employees were staffed
to the clients either from “the bench” (waiting to be assigned to a client position), or from
another assignment. Defendant hired both U.S. citizens and workers with H-1B visas.
Plaintiffs contended that defendant relied on “visa utilization” and “visa readiness”
policies, which allegedly created a disparate impact on non-South Asian and non-Indian
applicants and employees. First, the court found that the hiring sub-class failed to meet
the commonality or predominance requirements as individual questions would exist as
to the reason any particular applicant was denied employment. The court also
determined that as to the proposed bench termination sub-class (of individuals who
were involuntarily terminated from the bench), plaintiffs offered evidence that Defendant
worked to avoid the placement of visa-holding individuals on the bench at all, and also
created systems to move those employees off the bench quickly. The court found that
common questions would predominate as to whether defendant had a common policy,
which created a disparate impact in violation of Title VII. Accordingly, the court granted
plaintiffs’ motion to certify a class of employees who were non-South Asian and nonIndian who were terminated from the bench.
Finally, in the context of government employees (where the EEOC has adjudicatory
responsibility in certain instances), the Commission rendered a significant ruling in
Robbins II, et al. v. National Aeronautics & Space Agency, EEOC Hearing No. 5312014-00109X (EEOC Sept. 30, 2022). Plaintiffs in two class cases before the EEOC
alleged that Defendant, the National Aeronautics & Space Agency (“NASA”)
discriminated against Black and Asian-American employees in salary grades 13-15 on
the basis of their race by providing them with poor performance ratings in violation of
Title VII of the Civil Rights Act. Plaintiffs filed motions for class certification, and the
EEOC granted the motion. Plaintiffs contended that the performance review data
indicated that there was a racial disparity in Defendant’s rating system for performance
that was statistically significant, which lead to pay, promotion, and performance
differences. The EEOC granted class certification to two classes, including one
consisting of African-American employees in pay grades 13-15 who received less than
a “Distinguished” rating on their annual performance since October 2012, and one of
Asian-Americans meeting the same criteria. The EEOC determined that plaintiffs met
the commonality and typicality requirements by providing an evidentiary basis to support
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Duane Morris Class Action Review – 2023
