18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 663 parties." Id . at *10. The Court ruled that the use of the tools was neither mandated nor inherently discriminatory given the design of the tools for use by a wide variety of advertisers. For these reasons, the Court granted Defendant’s motion to dismiss. Yarbough, et al. v. Kaiser Permanente Georgia Region, Case No. 20-CV-4484 (N.D. Ga. June 29, 2021). Plaintiff, a customer service coordinator, filed a class action alleging that Defendant discriminated against her on the basis of her disability, anxiety and depression, in violation of the Americans With Disabilities Act (“ADA”). Defendant filed a motion to dismiss the class claims from the complaint, and the Court granted the motion. Defendant instituted “competency tests” to employees, and due to her disability, Plaintiff requested an accommodation of taking the test at a later date when she was more mentally stable. Id . at 3. Defendant denied the request, and Plaintiff ultimately failed the test. Plaintiff was tested again six months later, and she again failed the test. Defendant subsequently terminated Plaintiff’s employment on the grounds that she failed to meet the job requirements and was not successful in passing two competency tests. Plaintiff thereafter filed a charge of discrimination with the EEOC. After receiving a right to sue notice, Plaintiff filed her class action. Defendant moved to dismiss on the basis that Plaintiff failed to exhaust her administration remedies as to the class allegations in the complaint, because the charge did not “contain a single mention of discrimination against any other employee” besides Plaintiff, and the charge was “devoid of information that might have provided Kaiser with notice of the allegations present in her complaint of class-wide discrimination.” Id . at 4. The Court found that the charge of discrimination did not include any mention of other employees or language suggesting that the alleged discrimination occurred with other employees. The Court determined that Plaintiff’s charge only mentioned individual instances of alleged discrimination. Thus, the Court ruled that Plaintiff’s EEOC charge did not provide notice that Plaintiff was asserting class claims against Defendant. The Court concluded that Plaintiff did not even allege that any systemic or universal problems with the test applied to all who had to take it, but only that she took the test and was subsequently terminated because she no longer satisfied the job requirements. For these reasons, the Court granted Defendant’s motion to dismiss the class action allegations from Plaintiff’s complaint. (lx) Privacy Class Actions Abudayyeh, et al. v. Envoy Air, Inc., 2021 U.S. Dist. LEXIS 144945 (N.D. Ill. Aug. 3, 2021). Plaintiff, a former airline Passenger Service Agent (“PSA”), brought a putative class action on behalf of herself and other similarly- situated employees, alleging that Defendant violated Illinois’s Biometric Information Privacy Act (“BIPA”). Defendant implemented an attendance-tracking system that required all employees to use their fingerprints or handprint to clock-in and clock-out of work. Plaintiff alleged that Defendant failed to comply with the requirements of the BIPA before collecting her biometric identifiers ( i.e. , her fingerprints and handprint) by: (i) not developing a publicly available retention schedule and guidelines for permanently destroying employees’ biometric information; (ii) failing to inform Plaintiff or its other employees in writing that their biometric information was being collected; (iii) failing to inform Plaintiff or its other employees of the purpose and length of time for which their biometric information was being collected, stored, and used; and (iv) not obtaining prior written authorization from Plaintiff or its other employees before collecting their biometric data. Defendant moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) or, alternatively, pursuant to Rule 12(b)(6). The Court granted the motion to dismiss in part and denied in part. Defendant maintained that the complaint should be dismissed for lack of subject-matter jurisdiction because Plaintiff’s BIPA claims amounted to a minor dispute subject to mandatory and exclusive arbitration under the Railway Labor Act (“RLA”). Alternatively, Defendant asserted that the BIPA claims were preempted by the Airline Deregulation Act of 1978 (“ADA”), and therefore must be dismissed for failure to state a claim. First, as to the issue of subject- matter jurisdiction the Court determined that it had jurisdiction over some of the claims. Defendant and the Union agreed to the interim grievance procedure (“IGP”), which put in place a temporary grievance procedure, to apply during the pendency of negotiations of the final collective bargaining agreement. The IGP explicitly stated that it was made and entered into in accordance with the provisions of the RLA. Thus, the Court agreed with Defendant that any BIPA claims arising after the IGP’s effective date were preempted by the RLA because resolution of those claims required the interpretation or application of the IGP. As such, the Court dismissed those claims for lack of subject-matter jurisdiction. Having found that it had jurisdiction over some of Plaintiff’s BIPA claims, the Court proceeded to address whether those remaining claims nonetheless should be dismissed pursuant to Rule 12(b)(6), as preempted by the ADA. According to Defendant, the ADA preempted Plaintiff’s