18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 607 working on military construction projects through the end of 2023. Defendants argued that due to the passage of NDAA FY 19, Plaintiffs’ claims were moot. The Court agreed that the claims related to military construction projects were moot, but opined that this would not moot all Plaintiffs’ claims, as some were not military-related construction projects. Defendants also asserted that Plaintiffs had not recently filed regular H-2B visas, and the periods of need for all filed H-2B work petitions had long since expired, and as such, Plaintiffs were not suffering any current harm and thereby lacked standing to bring their claims. The Court also observed that Defendants’ argument failed to account for the ongoing nature of the alleged harm, because even though the time had expired for the previously filed petitions, Defendants had denied all regular H-2B petitions since 2015, which indicated that any future petitions would be "futile and a waste of resources." Id . at *8. The Court reasoned that standing principles would not require Plaintiffs to continually file hopeless petitions, thereby wasting time and money, when a pattern of past denials indicated that future petitions would be denied. Id . The Court held that Plaintiffs sufficiently alleged specific denials that had already occurred, and while the time periods for those applications may have expired, the nature and extent of the denials demonstrated a reoccurring pattern capable of repeating itself. Id . at *9-10. In addition, during pendency of the motion to dismiss, Congress enacted the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ("NDAA FY 21"), which extended the NDAA FY 19 "temporary services" exemption to certain types of civilian employment that operate under a "contract or subcontract" as long as the civilian project was "adversely affected" by the "military realignment occurring on Guam" but with "priority given to federally funded military projects." Id . at *11. In interpreting the evidence in a light most favorable to Plaintiffs, the Court found that NDAA FY 21 did not moot all of Plaintiffs’ claims, and thus, it denied Defendants’ motion to dismiss. (xliv) Immunity Issues In Class Actions Fain, et al. v. Crouch, 2021 U.S. Dist. LEXIS 95241 (S.D. W.Va. May 19, 2021). Plaintiffs, a group of transgender male individuals who worked for the state, filed a class action alleging that Defendants discriminated against Plaintiffs by denying coverage for gender-confirming healthcare, while allowing the healthcare for employees who were not transgendered. Plaintiffs filed claims for Medicaid recipients against the West Virginia Department of Health and Human Resources (“WVDHHR”) Defendants, and claims by state employees and their dependents against Ted Cheatham, the Director of the West Virginia Public Employee Insurance Administration, and The Health Plan, a health maintenance organization permitted to offer health plans to state employees. Id . at *3. The WVDHHR Defendants filed a motion to dismiss, challenging the claim for compensatory damages under the Eleventh Amendment. Plaintiff argued that the WVDHHR waived its Eleventh Amendment immunity by accepting federal assistance. Plaintiffs contended that Congress clearly and unambiguously conditioned federal Medicaid funding on states’ waiver of immunity for non-discrimination provisions when it enacted § 1003 of the Civil Rights Remedies Equalization Act of 1986, which provides that a state “shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” Id . at *7. Plaintiffs argued that the Residual Clause ("or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance") incorporated § 1557 of the ACA, which was a non- discrimination provision. The Court agreed with Plaintiffs. The Court ruled that the text of the Residual Clause unequivocally waived immunity against violations of "provisions of any other Federal statute prohibiting discrimination." Id . at *8. Defendants argued that § 1003 was not a sufficient waiver because the U.S. Supreme Court requires waivers to be "unequivocally expressed in the text of the relevant statute,” and thus because § 1557 does not contain an express waiver, Plaintiffs’ claim must be dismissed. Id . at *9. The Court rejected the WVDHHR’s reasoning because it would lead to untenable results. If the Court held that § 1557 could not be read in conjunction with § 1003, it would invalidate the waivers for § 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments, the Age Discrimination Act, and Title VI of the Civil Rights Act. Accordingly, the Court held that West Virginia waived its immunity from suit under § 1557 by accepting federal assistance under the ACA, as provided by § 1003’s Residual Clause. The Court also found Defendants’ other dismissal arguments to be without merit. Accordingly, the Court denied Defendants’ motion to dismiss.