A recent decision from the United States District Court for the Northern District of Illinois contains three important lessons for employment class action litigation. The first is that disability cases, such as those under the Americans with Disabilities Act, are particularly hard to prosecute as a class. The second is a reminder that the parties, even if the plaintiff is the EEOC, must still meet the requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The third is that the EEOC, despite the first two lessons, is still taking aggressive positions in class litigation even when those positions are legally and/or factually wrong.
The case of EEOC v. United Parcel Serv. Inc.pdf., Case No. 09-5291 (N.D. Ill., Sept. 28, 2011), began as two more or less garden-variety ADA charges against shipping giant UPS. UPS furnishes its employees with up to 12 months of unpaid medical leave, or roughly four times what it is required to provide under the Family and Medical Leave Act. The first charge related to an employee suffering from MS who requested, among other accommodations, leave in excess of 12 months for her medical condition. The second was an employee with emphysema who requested assignments to generally cooler, well-ventilated work areas, was placed on medical leave because the company determined that that accommodation could not be provided. Both employees were terminated after their 12 months of medical leave expired. Both charges fell within the EEOC’s latest efforts to create an obligation under the ADA for employers to provide almost unlimited leave to disabled employees under the rubric of a “reasonable accommodation.” We’ll leave the discussion of that issue to others.
In the UPS case, however, the EEOC not only asserted the claims of these two employees, but also asserted vague class allegations. It sought to pursue claims that UPS discriminated generally against an undefined class of disabled employees. UPS moved to dismiss those claims, citing the Twombly standard.
The district court began its analysis by recognizing that disability claims are fundamentally unlike other discrimination claims. While there is no good reason to discriminate based on race, gender, or similar traits, and employer may very well have a legitimate reason to take a disability into account where the disability prevents an employee from performing the essential functions of his or her job. Thus, the pleading standards in a disability case extend to the nature of the disability itself.
[As an aside: This is, of course, one key reason why it is so difficult to create a class-wide disability claim, because the type, nature, and extent of disabilities vary so widely as to defeat the 23(a) elements of commonality and typicality, as well as the superiority and predominance elements of Rule 23(b)(3).]
The district court found that the complaint only provided a “formulaic” description of the proposed class members, such as statements that they were disabled and “could perform the essential duties of her or her job without a reasonable accommodation.” These vague allegations, the court held, did not meet the Twombly standard. The court similarly rejected arguments by the Commission that it was relieved of the Twombly standards because it allegedly was acting in the public interest or that it, rather than the charging parties, was the plaintiff. Concluding that the EEOC had not met the requisite pleading standard, the court dismissed the class allegations. It did, however, grant the opportunity to correct the pleading deficiencies, if possible, and noted that the action would still proceed on behalf of the two representative claimants.
The Bottom Line: The EEOC and others are pursuing class claims based on vague allegations, but courts are holding them to the Twombly pleading standards.
Post-Script: On January 11, 2013, while the EEOC was seeking an appeal, the district court reconsidered its prior order and held that the EEOC’s proposed second amended complaint did satisfy the Twombly/Iqbal pleading standard. While the court recognized that the Commission had couched its allegations in “conclusory” terms, they were not so vague as to justify dismissal. Further, while the EEOC’s lack of effort to identify employees with potentially meritorious claims gave the court “some pause” it found that the allegations were sufficiently definite to avoid dismissal.
As a policy matter, the initial order was more supportable. Even the court recognized that the EEOC has investigatory powers and obligations that most plaintiffs do not. In light of those powers and responsibilities, as well as its extensive resources, it would not have been unreasonable to hold it to at least the same pleading standard as private plaintiffs.
Recognizing the employer’s concern that the EEOC was simply using the complaint to engage in a fishing expedition, however, the court directed that discovery be supervised by a magistrate judge to “move the case forward through the discovery phase as quickly as possible” and to explore settlement opportunities.