18th Annual Workplace Class Action Report - 2022 Edition

44 Annual Workplace Class Action Litigation Report: 2022 Edition significant “underutilization” of African-Americans in its civilian workforce. Id. at *3. Plaintiffs brought disparate impact and disparate treatment claims on behalf of two putative classes of employees. The first class included all African-Americans who passed any applicable Department of Citywide Administrative Service tests, possessed all other posted requirements for any posted FDNY civilian vacancy, and applied and were rejected by the FDNY for any such position in the relevant time period. The second class was all African-Americans who were otherwise already employed in a civilian full-time position in the FDNY in the relevant time period. Plaintiffs filed a motion to certify their proposed classes. The City argued that the complaint failed to allege that FDNY relied upon a “common mode of exercising discretion” over its hiring, promotion, and compensation processes and failed to “pinpoint facially neutral policies that are applicable to the putative class.” Id . at *5. The Court considered whether Plaintiffs established that African-Americans at the FDNY were subjected to “a common mode” or “general policy” of discrimination or whether, instead, the FDNY had a “policy against having uniform employment practices.” Id . at *7. The Court found that the Plaintiffs failed to show that the involvement of various departments at the City in hiring, promotion, or compensation decisions was sufficiently “consistent,” “pervasive,” or “class-wide” to produce common questions and answers across the putative classes. Instead, the Court determined that the roles of the various offices varied substantially with respect to the FDNY’s employment procedures and that the putative class members would have had varied experiences in applying for promotions and with respect to compensation decisions. Ultimately, the Court noted that even if the various offices of the City discriminated against the FDNY employees or applicants, Plaintiffs failed to show that all of their proposed class members would have been subjected to the same mode of discrimination. Further, the Court rejected Plaintiffs’ argument that the failure of the FDNY’s EEO Office to impose a “system for evaluating and rewarding managers based on compliance with EEO policies” supported certification of a class, as the complaint boiled down to an allegation that supervisors were allowed too much discretion to make employment decisions. Id. The Court also found that Plaintiffs’ statistical analysis undermined the idea that a uniformly applied, common practice was driving the outcomes at issue, since Plaintiffs failed to identify any practice that would have disparately impacted all members of their proposed classes. Accordingly, the Court denied class certification with respect to the disparate impact claims. With respect to the disparate treatment claims, the Court ruled that Plaintiffs’ statistical analysis could suggest that African-American applicants to seven job titles faced discrimination, but it did not suggest the kind of pattern or practice of discrimination that would create common questions across the proposed class. Accordingly, the Court denied certification of any class with respect to the discriminatory impact claims and ultimately denied the Plaintiffs’ motion for class certification in its entirety. (iii) Third Circuit De Block, et al. v. Speedway, LLC, 2021 U.S. Dist. LEXIS 198782 (E.D. Penn. Oct. 15, 2021). Plaintiff, a female general manager, filed a collective action alleging that Defendant failed to pay female managers as much as male managers in violation of the Equal Pay Act (“EPA”). Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff contended that female managers performed substantially the same job duties as their male counterparts and had substantially the same experience, but were compensated at a lower rate. In support of her motion, Plaintiff submitted her own deposition testimony, the sworn declarations of five present or former female general managers, two Rule 30(b)(6) deposition transcripts of Defendant’s representatives, a "Responsibility Statement" for the general manager position, and Defendant’s "Compensation Manual." Id . at *6. The Responsibility Statement for the general manager position listed 26 detailed responsibilities shared by all general managers; 17 identical educational, experiential, skill, and additional requirements; and nine "preferred managerial attributes" shared by the position. Id . Defendant’s human resources manager also confirmed in deposition testimony the similarity of duties, responsibilities, and qualifications for general managers at Defendant’s gas stations nationwide. Id . at *7. The declarations submitted were also consistent with the Responsibility Statement and the deposition testimony. All declarations averred that they were paid less than their male colleagues despite there being no substantial differences in experience, tenure, or responsibilities that would justify such a pay differential. Id. at *8. Defendant argued that Plaintiff failed to allege that a common policy of discrimination existed, as it maintained a facially neutral compensation policy. The Court ruled that Defendant’s argument went to the merits of Plaintiff’s allegations and was thus unsuitable to consider at the conditional certification stage. The Court also opined that Defendant’s Compensation Manual described a compensation policy that was commonly applicable to the pay grades for salaried general managers, which was confirmed by the testimony of Defendant’s 30(b)(6) representative. The Court found that