18th Annual Workplace Class Action Report - 2022 Edition

46 Annual Workplace Class Action Litigation Report: 2022 Edition testimony showed that the class members' circumstances were sufficiently similar that it would be able to resolve issues common for the class. The Court also ruled that Plaintiffs all worked with the supervisor and had experiences remarkably similar to one another and to those of other potential class members, such that their claims were typical to all class members. The Court held that the adequacy requirement was met because the interests of the named Plaintiffs were aligned with the interests of the class, and their counsel was qualified, experienced, and able to conduct class litigation. Id . at *42. As to the Rule 23(b) requirements, the Court determined that common questions predominated over the individual ones, even with some variation in the individual class members’ experiences. Finally, the Court concluded that a class action would be the superior method of adjudication because members of the class would be unlikely to proceed with individual claims and common proof and evidence would be relevant to all claims. For these reasons, the Court granted Plaintiffs’ motion for class certification. Vasser, et al. v. Mapco Express , 2021 U.S. Dist. LEXIS 120964 (M.D. Tenn. June 29, 2021). Plaintiffs, two convenience store managers (“SMs”), filed a collective action alleging that Defendant failed to provide equal pay to female managers in violation of the Equal Pay Act. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs alleged that Defendant had a "policy, pattern or practice" of "systemic gender discrimination" by paying female SMs less than similarly-situated male ones. Id. at *2. Plaintiffs further asserted their job responsibilities were the same as all other SMs, including "working the cash register; stocking shelves; gas and cigarette surveys; cleaning and straightening the store and gas pumps; assisting customers; filling in for hourly employees including at other stores; organizing the store according to detailed corporate directives; counting the safe; performing inventory; and checking in vendors and any other tasks required to ensure the profitable operation of her assigned store." Id . at *3. Defendant did not oppose Plaintiffs’ motion for conditional certification. In its independent review of Plaintiffs’ motion, the Court determined that Plaintiffs sufficiently made the factual showing required for conditional certification of their EPA claims. The Court observed that Plaintiffs alleged that Defendant had a uniform, hierarchical pay structure in which all female managers were paid less compared to male comparators. Accordingly, the Court granted conditional certification of a collective action consisting of all female SMs over the previous three years. (vii) Seventh Circuit Howard, et al. v. Cook County Sheriff ’ s Office , 989 F.3d 587 (7th Cir. 2021). Plaintiffs, a group of jail employees, filed a class action alleging that Defendant subjected them to sexual harassment in violation of Title VII of the Civil Rights Act. The District Court previously had granted Plaintiffs’ motion for class certification pursuant to Rule 23. On appeal, the Seventh Circuit reversed and remanded the District Court’s order. Plaintiffs asserted that they had endured frequent and extreme sexual harassment by male inmates, which Defendants failed to take reasonable measures to prevent. Plaintiffs sought to certify a class consisting of all female employees of the Sheriff’s Office or the County who worked at the jail complex. In support of their motion, Plaintiffs submitted Defendants’ policies, procedures, and records; expert reports from statistical, psychological, and correctional professionals; 144 class member declarations; and deposition testimony from class members and defense witnesses. Id . at 594. The District Court’s Rule 23 analysis relied heavily on the concept of "ambient harassment," which it defined as "the experience of working in an environment highly permeated with sexually offensive and degrading behavior, that is, a highly sexualized atmosphere in which crude and offensive sexual behavior is common and employees see that it is normative, whether specifically directed at them or not." Id . at 595. The District Court determined that under the theory, the putative class met the commonality requirement because the class members shared the question of "whether the ambient harassment experienced by female employees at the jail and the courthouse is sufficiently severe and pervasive to support a Title VII hostile work environment claim." Id . The District Court also concluded that Plaintiffs’ claims were typical of the class because they relied on the same legal theory as the class members, even if some had experienced direct harassment and others only experienced ambient harassment. Id . at 596. The District Court subsequently modified the class definition to include only those who had direct interactions with male inmates. On appeal, the Seventh Circuit determined that ambient harassment could not unite the modified class because it was no longer a central issue in the case and Plaintiffs had not shown that it manifested in the same way across different parts of the jail complex. The Seventh Circuit further held that the significant variation in harassment levels across different parts of the jail complex made class members’ work environments materially different from one another. The Seventh Circuit reasoned that the District Court’s failure to reassess commonality when