18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 719 named Plaintiff saw a former co-worker on a chance encounter, who stated that she was supposed to be reinstated to her job. Plaintiffs thereafter filed the lawsuit alleging seven causes of action, including: (i) breach of duty of fair representation against the Union; (ii) negligent hiring and retention of Peters against Verizon; (iii) tortious interference with the employer-employee relationship against Peters; (iv) infliction of extreme emotional distress against the Union and Peters; (v) civil conspiracy against all Defendants; (vi) interference with pension benefits against Defendants in violation of the ERISA; and (vii) equal rights violations under 42 U.S.C. § 1983 against all Defendants. Defendants contended that the claims were all subject to one and four-year statutes of limitations, and Plaintiffs’ claims must be dismiss as they were filed over five years after their termination. The Court agreed that all the claims were subject to four years or less statutes of limitations, and therefore the claims were time-barred. Plaintiffs asserted that the statutes of limitations should be tolled due to Defendants’ fraudulent concealment. Plaintiffs alleged that the Union fraudulently concealed having received Verizon’s EEO reinstatement recommendation, thereby preventing Tilley from bringing her claims against the Union, and that all Defendants fraudulently concealed the allegedly discriminatory motive of Plaintiffs’ termination, thereby preventing Plaintiffs from bringing their claims. Id . at *4. Plaintiffs also contended that they did not have adequate notice of the claims until Tilley’s chance encounter with her former co-worker in 2020. The Court ruled that Plaintiffs failed to show that the alleged concealment prevented their discovery of the claims within the limitations period. The Court explained that the alleged facts all stemmed from employment actions that happened over five years previously, and that Plaintiffs had adequate notice to bring their claims during the regular limitations period. The Court thus held that the fraudulent concealment doctrine did not apply, and therefore Plaintiffs’ claims were time-barred. Accordingly, the Court granted Defendant’s motion to dismiss. Waldschmidt, et al. v. Union Pacific Railroad Co. , 2021 U.S. Dist. LEXIS 190610 (D. Colo. Oct. 4, 2021). Plaintiff, a train conductor, filed a class action alleging that Defendant discriminated against him on the basis of his need to wear hearing aids in violation of the Americans With Disabilities Act (“ADA”). Defendant filed a motion to dismiss, which the Court denied. Plaintiff was hearing-impaired, but could manage the hearing loss with the use of hearing aids. Defendant required Plaintiff to sit for a hearing exam without his hearing aids and without hearing protection. Plaintiff failed the exam and was removed from service. Over 14 months, Plaintiff was tested several more times, both with and without hearing aids. Plaintiff finally passed the exam taken with hearing aids and ultimately returned to work. After filing a charge of disability discrimination with the EEOC, Plaintiff received a right-to-sue letter, and filed the a complaint alleging class claims, pattern or practice claims, and individual claims. Defendant moved to dismiss, and the Magistrate Judge recommended granting Defendant’s motion in part and denying it in part. The Magistrate Judge determined that Plaintiff’s removal from service was the "discrete act" that provided the basis for his individual claims for violation of the ADA. Id. at *5. Therefore, the Magistrate Judge ruled that Plaintiff had 300 days from April 25, 2018, the date that the discrete act occurred, to file a timely EEOC charge, which he failed to do. Plaintiff argued that each hearing test he endured constituted a discrete act. However, the Magistrate Judge reasoned that Plaintiff’s EEOC charge did not mention the ongoing hearing tests, and only described "the incident at issue in this charge" as occurring on April 25, 2018, when Defendant told him he was required to pass the hearing test without his hearing aids and then removed him from service. Id . at *7. Therefore, the Magistrate Judge opined that Plaintiff’s EEOC charge could not have provided an opportunity for the EEOC to be put on notice of the claim because the incident giving rise to the charge arose outside the limitations period and because Plaintiff stated that Defendant had since "changed its position" and allowed him to test with his hearing aids. Id . The Court also found that the EEOC charge failed to mention any discrete act or even ongoing discussions related to finding accommodations, or any request for or denial of a specific accommodation that would support such a claim. For these reasons, the Court therefore overruled Plaintiff’s objections to the Magistrate Judge’s recommendation, adopted the Magistrate Judge’s findings, and partially granted Defendant’s motion to dismiss. (lxxiii) Stays In Class Action Litigation Avalos, et al. v. The United States, Case No. 19-48 (Fed. Cl. Feb. 23, 2021). Plaintiffs, a group of government employees, filed a collective action alleging that Defendant failed to pay them wages to which they were entitled when they were required to work regularly scheduled workdays during the shutdown. The Court of Federal Claims denied Defendant’s motion to dismiss on the grounds that the Anti-Deficiency Act (“ADA”), including the Government Employees Fair Treatment Act, did not abrogate Defendant’s obligations under the FLSA. Defendant thereafter filed a motion to stay pending interlocutory appeal of the Court’s ruling. The Court denied