18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 625 Cohen, et al. v. Brown University, 2021 U.S. App. LEXIS 32209 (1st Cir. Oct. 27, 2021). Plaintiffs, a group of female student-athletes, filed a class action alleging gender discrimination with respect to the funding and operation of varsity athletic programs. The District Court previously had granted class certification and entered a preliminary injunction, which was upheld by the First Circuit. Thereafter, following a bench trial, the District Court found that Defendant had violated Title IX by failing to accommodate the interests and abilities of women athletes. Id . at *2. Defendant submitted a proposed compliance plan, and the District Court denied it. On appeal, the First Circuit affirmed in part, reversed in part, and remanded. Subsequently, the parties settled the matter. After nearly two decades, Defendant unilaterally decided in 2020 to eliminate certain varsity sports and to upgrade sailing to varsity status (open to men and women). Id . The parties thereafter renegotiated the settlement (the Amended Settlement Agreement) and a group of objectors argued that Plaintiffs were not adequate representatives of the class and that the settlement was not fair or reasonable. Following a fairness hearing, the District Court overruled the objections. On appeal, the First Circuit affirmed the District Court’s ruling. The objectors argued that the named class representatives could not and did not adequately represent the class of current and future students because the named representatives – who were members of the class when they were appointed – those who had graduated from the university in the distant past. Id . at *17. The First Circuit determined that the District Court considered the quality of the representation afforded by the class representatives and found that representation to be adequate, which was not a clearly erroneous determination. Id . at *25. Further, the First Circuit ruled that after consideration of the whole of the litigation, its history and objectives, and Defendant’s evolving response to the demands of Title IX, the District Court’s grant of settlement approval was not made in err. For these reasons, the First Circuit affirmed the District Court’s ruling. Mitchell, et al. v. City Of Cincinnati, 2021 U.S. Dist. LEXIS 219429 (S.D. Ohio Nov. 14, 2021). Plaintiffs, two white male Lieutenants with the Cincinnati Police Department (“CPD”), filed a motion seeking a preliminary injunction to hold unconstitutional a consent decree entered into in 1987, which required that 25% of the promotions made from any promotional list for the ranks of Lieutenant, Captain, and Assistant Chief were to be given to African-American and/or female applicants. Defendant thereafter created a promotion process in which, in the event of an opening, a numerically ranked promotional list of eligible applicants would be determined through combining the results of a competitive exam and seniority points. Id . at *3. Promotions were then determined in order of one’s rank on the promotional list, starting with the highest score, until that promotional list expired. To comply with the consent decree, with every fourth promotion in the position of Captain, the CPD reviewed the race and sex of the previous four individuals promoted. In the event no African-American or female individual was promoted in that group of four, Defendant implemented a "double fill" by creating and funding an additional position for the next person on the list who was African-American or female. Id . at *4. Plaintiffs allege an equal protection violation under the Fourteenth Amendment to the U.S. Constitution and argued that Defendants’ continued enforcement of the 1987 Consent Decree constituted impermissible race and sex discrimination against white males who sought promotions to the rank of Captain in the CPD. Id . at *7. The Court ruled that even assuming, without deciding, that Plaintiffs could establish a likelihood of success on the merits, they failed to establish that they were likely to suffer irreparable harm. The Court reasoned that without the 1987 Consent Decree in place, it was only "speculative" and not a certainty that Plaintiffs would be on a list to advance to the rank of Captain. Thus, the Court ruled that without the 1987 Consent Decree in place, Plaintiffs failed to establish harm, and with the 1987 Consent Decree in place, any harm was speculative, theoretical, and not immediate. Accordingly, the Court denied Plaintiffs’ motion for a preliminary injunction. Shakman, et al. v. Clerk Of Cook County , 2021 U.S. App. LEXIS 11012 (7th Cir. April 16, 2021). In this class action, the District Court entered a series consent decrees (the “ Shakman decree”) in 1972 that enjoined the City of Chicago and Cook County officials from engaging in political employment practices. In 1983, the Shakman decree was amended to add prohibitions from hiring decisions being made or conditioned on any political considerations or affiliations. One Defendant, the Clerk of Cook County, appealed from the Magistrate Judge’s finding of recent violations of the consent decrees that appointed a special master to monitor the Clerk’s future compliance, and refusing the Clerk’s request to vacate the consent decrees. On appeal, the Seventh Circuit largely affirmed the underlying order, but determined that it did not have jurisdiction to rule on the special master appointment. In 1991, the U.S. Supreme Court held that the First Amendment’s prohibition against patronage-based firings recognized in Elrod v. Burns , 427 U.S. 347 (1976), "extends to promotion, transfer, recall, or hiring decisions involving public employment positions for which party affiliation is not an appropriate