18th Annual Workplace Class Action Report - 2022 Edition

690 Annual Workplace Class Action Litigation Report: 2022 Edition by Defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Id . at *2. Defendant claimed that the December 10 filing was the first confirmation of the requisite amount-in-controversy and thus it timely removed the action 20 days later. Plaintiffs argued that the pre-complaint demand letter in 2019 qualified as an "other paper.” Id . The Court reasoned that "pre-complaint communications between counsel do not qualify as ‘other paper’ for the purpose of putting Defendant on notice of the amount-in- controversy." Id . at *3. This Court opined that in order for the notice of removal clock to start running, a complaint has to have already been filed. Accordingly, the Court found that the removal was timely filed, and it denied Plaintiffs’ motion to remand. Railey, et al. v. Sunset Food Mart, Inc., 2021 U.S. App. LEXIS 30966 (7th Cir. Oct. 15, 2021). Plaintiff, a grocery store employee, filed a state court class action alleging that Defendant violated various provisions of the Illinois Biometric Information Protection Act when it used a biometric time clock. Two years after the action was initially filed, Defendant removed the action to the District Court on the grounds that Plaintiff’s claims were preempted in their entirety by the Labor-Management Relations Act (“LMRA”). Plaintiff sought to remand the action back to state court, arguing that the removal was untimely. The District Court granted the motion to remand. On appeal, the Seventh Circuit affirmed the District Court’s ruling. Defendant argued that it was unaware of Plaintiff’s union membership until receiving an interrogatory response from her in October 2020 in which she confirmed her membership in a labor union, and thus its removal in November 2020 was timely filed. In January 2021, Defendant filed a "Supplemental Statement in Support of Jurisdiction,” which asserted that removal was also proper under the CAFA. The District Court had determined that the case was not initially removable, and therefore § 1446(b)’s supplemental clock began to run when "Defendant receives a pleading or other paper that affirmatively and unambiguously reveals that the predicates for removal are present.” Id . at *3. The District Court determined that Defendant submitted discovery responses in January 2020 that indicated its awareness of Plaintiff’s union representation, and thus its removal filing 11 months later was untimely. The District Court also concluded that based on its prior determination that Defendant’s January 2020 discovery response was a paper indicating federal subject-matter jurisdiction, that this same acknowledgement started the 30-day window under § 1332(d)(7) for removal on diversity grounds. Id . at *7. The District Court therefore granted the motion to remand. On appeal, the Seventh Circuit affirmed, but found that the District Court erred in concluded that the measures of timeliness were the same for the different bases of removal. Defendant argued that it only discovered Plaintiff’s change in domicile in January 2021 through its own social media investigation, and then only a few days later filed its supplemental authority on removal. The Seventh Circuit opined that Defendant’s removal was thereby timely filed. However, the Seventh Circuit concluded that Plaintiff’s action was exempted from the CAFA by the home state controversy exemption, as more than two-thirds of the class members were Illinois-based citizens. As to the removal based on LMRA preemption, the Seventh Circuit explained that Plaintiff’s complaint contained sufficient information from which Defendant could infer that Plaintiff was represented by a union and that her proposed class included Illinois-based employees, most of whom were subject to collective bargaining arrangements. Accordingly, the Seventh Circuit reasoned that the 30-day removal clock under § 1446(b)(1) started when Plaintiff served her complaint in February 2019, and therefore the November 2020 preemption-based notice of removal was untimely. For these reasons, the Seventh Circuit affirmed the District Court’s ruling granting Plaintiff’s motion to remand. (lxiv) Retaliation Issues In Class Action Litigation Sellars, et al. v. CRST Expedited, Inc., 13 F.4th 681 (8th Cir. 2021). Plaintiffs, a group of female truck drivers, brought a class action alleging claims of a hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964. Subsequently, Defendant moved for partial summary judgment with respect to the retaliation claim pursuant to Rule 56(a), and the District Court granted the motion. Defendant asserted that it was entitled to summary judgment on Plaintiffs’ retaliation claim for two reasons, including: (i) Plaintiffs could not demonstrate an adverse employment action; and (ii) Plaintiffs could not show that their removal from their trucks was the result of retaliation. The District Court ruled that Plaintiffs’ attempt to demonstrate a fact issue was insufficient relative to their claim that of pretext by showing that they made complaints of sexual harassment and Defendant took adverse employment action shortly thereafter. The District Court opined that Plaintiffs offered no evidence from which a reasonable jury could infer that Defendant’s reasons for removing Plaintiffs from the trucks (resulting in no pay until the complainant could be re-paired) were pretextual. As such, the District Court