6th Circuit Rejects Crude Statistics Based on Small Sample

Case addresses scope of EEOC charge, too

The Sixth Circuit has issued an opinion involving a number of class action and employment issues in a case arising out of an unusual fact pattern and convoluted procedural history. The most important of these involve the use of small statistical samples and potential defects in the EEOC charges, but despite the odd history, there are other worthwhile holdings as well. We’ll skip over the contorted history and focus on just the parts of interest.

The decision in Peeples v. City of Detroit, Case No. 17-1222/1250 (6th Cir. June 1, 2018), arose out of the city of Detroit’s 2012 bankruptcy and its resulting layoffs of firefighters. On the eve of the city’s bankruptcy, it announced the need to lay off more than 2,000 workers in various departments. Pursuant to the terms of its labor agreement with the firefighters’ union, the city sent a notice containing a list of 22 firefighters to be laid off. Although the list was ranked by seniority – a seemingly objective basis – a dispute arose with the union over how that seniority should be calculated, resulting in a class action grievance filed by the union. The city capitulated and eventually laid off 27 firefighters based on the list the union advocated, which contained a higher number of minority firefighters than the city’s did. Less than three months later, the union changed its mind and agreed that the city’s initial list was correct. The city and union settled, or at least it seemed they had settled, the claims of those individuals for back pay. Approximately 10 of the affected individuals, however, contended that they were selected based on their race or national origin and filed suit against both the union and the city. The district court ultimately granted summary judgment against the plaintiffs on both procedural and merits grounds.

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New York District Court Denies Conditional Certification of Class of Café Managers

The United States District Court has rendered a decision that is interesting in at least two respects. First, it is a lengthy and thoughtful opinion denying certification of a putative class of 1,100 café managers under the Fair Labor Standards Act (FLSA). Second, the court based the decision, at least in part, on the recent United States Supreme Court decision in Encino Motor Cars, LLC v. Navarro, 138 S. Ct. 1134 (2018), which more than arguably altered prior case law requiring FLSA exemptions to be construed narrowly. We previously blogged that decision here.

In Brown v. Barnes and Noble, Inc., Case No. 1:16-cv-07333 (RA) (KHP) (June 25, 2018), the plaintiffs brought a putative collective action against the Barnes & Noble book chain purportedly on behalf of its café managers. The plaintiffs moved for conditional certification early in the case, which the court denied without prejudice, in part because the plaintiffs had not provided the claimed improper company policies. Following a period of discovery, the plaintiffs then moved again for conditional certification.

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The Supreme Court Confirms That Class Plaintiffs Must Take Their Bite of the Apple Sooner Rather Than Later

Although he is remembered as a Los Angeles Laker, Hall of Famer Kareem Abdul-Jabbar, as basketball trivia buffs know, actually began his NBA career on the Milwaukee Bucks. After turning down an offer to play for the Harlem Globetrotters, Abdul-Jabbar was drafted by the Bucks in 1969, where he won the MVP in his second season while leading the Bucks to their sole NBA championship in 1970. In October 1974, Abdul-Jabbar requested a trade to Los Angeles, and the rest (including his role as Roger Murdock in Airplane!) is history.

1974 was also a monumental year with regard to class-action tolling. In American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the Supreme Court held that the timely filing of a class-action tolls the applicable statute of limitations for all persons encompassed by the class complaint. Where class action status is denied, the Court ruled that members of the failed class could timely intervene as individual plaintiffs in the still-pending, non-class action, even though it had been divested of its class character. The question before the Court in China Agritech, Inc. v. Resh, Case No. 17-432 (June 11, 2018), was the natural extension of that decision: When class certification is denied, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew, beyond the time allowed by the applicable statute of limitations? Justice Ginsburg delivered the unanimous opinion: “Our answer is no.”

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Experts Must Satisfy Daubert Standards at Certification Stage

D.C. District Court Follows Dukes Admonition

Nearly seven years ago, in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court addressed, at least in significant respect, the question of whether experts must satisfy Daubert standards at the class certification stage. In that case, the plaintiffs sought to use expert testimony about claimed gender bias in “corporate culture,” testimony the defendant sought to exclude. In relying on the testimony, the Dukes district court held that “Daubert did not apply to expert testimony at the certification stage.” In response to this pronouncement, the majority of the Supreme Court simply stated, “We doubt that is so.” We blogged this issue and the state of the law in 2011. Even prior to Dukes, it appeared that the majority of courts did find Daubert standards to apply.

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Texas District Court Denies Certification of Claims Involving Claimed Racial Preferences in Requests to Staffing Agency

Class not reasonably ascertainable

In the wake of major wage and hour decisions such as last week’s opinion in Epic Systems Corp. v. Lewis, it’s easy to forget that employers continue to face class-action claims in other contexts, particularly with respect to claimed discrimination based on race or gender, and that such claims may be very difficult both to mount and to defend.

In White Glove Staffing, Inc. v. Methodist Hospitals of Dallas, Civil Action No. 3:17-CV-1158K (May 29, 2018), the court considered an interesting fact pattern involving a staffing agency that supplied food service workers in a hospital environment. The crux of the claim was that the hospital allegedly insisted that the staffing agent only sent Hispanic employees, and rejected at least one African-American prep cook on the grounds that she was “not working out.” When faced with the claimed demand only for Hispanic workers, the staffing agency terminated the contract.

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The Legality of Class Action Waivers in Arbitration Agreements – SCOTUS Finally Speaks

The controversy surrounding the validity of employment arbitration agreements with class action waivers has been simmering since at least 2012. Now, with the Supreme Court’s decision in Epic Systems Corp. v. Lewis, we have an answer: They “must be enforced as written” despite any debatable policy within the National Labor Relations Act that suggests otherwise. Before we analyze the majority and dissenting opinions, let’s take a quick look backward.

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Washington Court Denies Plaintiffs’ Motion for Summary Judgment on Various Overtime Issues

Overconfidence won’t overcome questions of fact

Most practitioners and human resource professionals are already familiar with the increasingly difficult wage and hour laws in California and its “Mini Me” to the east, New York state. But some other states, including Oregon and Washington, have their own unique – though perhaps less burdensome – overtime laws.

In Mendis v. Schneider National Carriers, Case No. C15-0144-JCC (W.D. Wa., May 8, 2018), the plaintiffs, a class of truck drivers, brought suit under Washington state law for alleged unpaid overtime. Although the drivers were paid on a piece rate basis, they contended that they should have received overtime computed in accordance with Washington law rather than the arguably lower federal calculation. Emboldened by court rulings finding that they were entitled to overtime and certifying the class, the plaintiffs moved for partial summary judgment on a variety of issues, including the sufficiency of the employer’s time records and that of a “willful” violation that would double the claimed damages.

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Gutierrez v. Wells-Fargo Bank – Eleventh Circuit Sheds More Light on Waiver of Arbitration Rights in Putative Class Setting

Whether a defendant has waived its right to arbitrate as to unnamed class plaintiffs has been a troubling issue. Some courts base their analysis on their lack of jurisdiction over unnamed putative class members. Still others focus on how long the case has been pending and whether the defendant knew that some putative class members had arbitration agreements. Now, the Eleventh Circuit in Gutierrez v. Wells Fargo Bank, NA, No. 16-16820 (11th Cir. May 10, 2018), has added greater clarity to the analysis. The Gutierrez opinion resulted from five class actions brought by bank customers in 2008 and 2009 claiming that they were unlawfully charged overdraft fees by their banks. The opinion details a lengthy history of arbitration-related issues in the district and appellate courts.

The Procedural History

In November 2009, the district ordered all defendant banks to file motions directed to the complaints, including those to compel arbitration, by Dec. 8, 2009. Rather than move to arbitrate the claims of the named plaintiffs, Wells Fargo joined several other banks in filing a comprehensive motion to dismiss.

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Proposed Rule 23 Amendment for Class Action Settlement: Sea Change or Codification of the Status Quo?

We’ve noted several times in this blog the difficulties parties may face when trying to obtain court approval for a settlement they have reached. Recognizing many of these issues, new amendments to Federal Rule of Civil Procedure 23(e) are scheduled to take effect on Dec. 1, 2018.

One of the proposed amendments requires that “[t]he parties must provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class.” Proposed Rule 23(e)(1)(A). Under the new rule, the court must direct notice if the parties show the court that it will likely be able to (1) approve the settlement proposal and (2) certify the class for purposes of judgment on the proposal. At first glance, this appears to be a significant change to Rule 23(e), requiring settling parties to provide significantly more information at the preliminary approval stage than Rule 23 previously required. In practice, however, this is probably just the codification of the status quo for many courts and class counsel.

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California District Court Denies Certification of Class of Retail Loss Prevention Employees

Plaintiffs’ Arguments Miss the [fill in the blank]

One of the justifications and requirements for class treatment is that the plaintiffs’ claims all can be resolved in one stroke. This concept, which is embodied in the related elements of commonality and typicality and central to the Supreme Court’s Dukes decision, is frequently glossed over by parties or courts eager to confer class action status on a given dispute. In many cases, this is done not by looking at the evidence or the facts the plaintiffs must prove in order to establish their claims but largely by simply restating the claims themselves. But not all courts will sidestep such strategies.

In Faraji v. Target Corporation, Case No. 5:17-CV-00155-ODW-SP (C.D. Cal. Apr. 30, 2018), the plaintiff had the awkward job title of “executive team leader in asset protection,” which went by the equally awkward abbreviation ETL-AP. Even if you try to pronounce it (etlap?), it’s still awkward. The duties, however, were important for the operation of a large retail store.

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