18th Annual Workplace Class Action Report - 2022 Edition

584 Annual Workplace Class Action Litigation Report: 2022 Edition process privilege was designed to protect the proper and efficient functioning of the government, and when, as here, the government itself is accused of wrongdoing, then the privilege would not necessarily protect proper governmental functioning but instead might shield governmental malfeasance. Id . at *10. The Court found that disclosure of documents concerning the creation of the Plan and its exclusions would have only a minimal adverse effect on future healthcare coverage deliberations. Id . at *13. For these reasons, the Court granted Plaintiff’s motion to compel production of documents related to the creation of the health plans. Toomey, et al. v. State Of Arizona , 2021 U.S. Dist. LEXIS 120202 (D. Ariz. June 28, 2021). Plaintiff, an associate professor at the University of Arizona, received health insurance benefits under a self-funded health plan provided by the State of Arizona. The health plan provided coverage for medically-necessary care, but had exclusions for gender reassignment surgery. Plaintiff was transgendered person, and his treating physicians recommended that he receive a hysterectomy as a medically-necessary treatment for his gender dysphoria. Defendants denied coverage to Plaintiff for the surgery under the health plan. Plaintiff thereafter filed a class action against the State of Arizona and the University of Arizona alleging sex discrimination claims under Title VII and the equal protection clause of the Fourteenth Amendment. During discovery, Plaintiff sought documents and information concerning the health plan’s exclusion of gender reassignment surgery and the decision-making behind it. Defendants withheld 85 documents on the basis of attorney-client privilege. Id . at *4. Plaintiff subsequently filed a motion to compel production of the withheld documents. The Court granted Plaintiff’s motion. Defendants argued that the plan was legal and on their advice of counsel that the exclusion was not the product of intentional discrimination. Defendants contended that they were advised that the exclusion was legal and nothing in the law required the health plan to cover gender reassignment surgery. By allegedly relying on this legal advice to explain their actions, the Court determined that Defendants waived by implication their attorney-client privilege as to that advice. The Court noted that Defendants explicitly asserted that "the legal advice that the State received regarding this issue is covered by the attorney-client privilege." Id . at *7. Defendants specifically identified two memoranda, one from Marie Isaacson, dated August 3, 2016, and one from outside legal counsel Fennimore Craig, P.C., dated July 20, 2016, as documents covered by attorney-client privilege that were "considered, reviewed, or relied on by Defendants relating to the Exclusion." Id . at *8. The Court reasoned that Plaintiff could not adequately dispute Defendants’ reason for the actions, or the legality of them, without access to the legal advice that Defendants received. Id . at *9. Moreover, the Court observed that Defendants specifically identified two memoranda as documents covered by attorney-client privilege that were "considered, reviewed, or relied on by Defendants relating to the Exclusion." Id . The Court concluded that Defendants’ understanding of the law was based in large part on advice from counsel. Defendants maintained that they "did not disclose any legal advice contained therein, did not indicate there was a recommendation from legal counsel, and did not state that the State Defendants relied on any advice of legal counsel." Id . at *10. The Court disagreed. It determined that Defendants implied that they received legal advice on the propriety of the exclusion from counsel and relied on that legal advice when they decided to establish or maintain the exclusion. Id . Accordingly, the Court granted Plaintiff’s motion to compel production of the 85 withheld documents. (xxxv) Disparate Treatment Issues In Class Actions Hispanic National Law Enforcement Association NCR, et al. v. Prince George ’ s County, 2021 U.S. Dist. LEXIS 76789 (D. Md. April 21, 2021). Plaintiffs, the Hispanic National Law Enforcement Association NCR ("HNLEA") and the United Black Police Officers Association ("UBPOA"), along with 13 of their members who were employed by the Prince George’s County Police Department ("PGCPD"), filed a class action against Prince George’s County, Maryland ("the County") and four PGCPD officials, alleging discrimination and retaliation against Black and Hispanic officers. Plaintiffs filed a motion for a preliminary injunction seeking to enjoin further administration of the PGCPD promotion tests until the PGCPD replaced the existing promotion system with one that reduced or eliminated its discriminatory effect. Id . at *3. The Court granted in part the motion. Plaintiffs offered statistical evidence providing that Black and Hispanic officers were not promoted to higher officer rankings as often as White officers. Plaintiffs contended that the promotion rates were significantly different and were evidence of disparate impact discrimination. Further, Plaintiffs contended that Defendants engaged in deliberate indifference to the potential discrimination in the promotion tests and processes. The Court found that the PGCPD promotion tests and processes had an adverse impact on Black and Hispanic officers seeking promotion, which resulted in significant under-representation of such officers at the higher ranks of the PGCPD. Id . at *55. In turn, the results of the promotion processes for Sergeant and Lieutenant reduced