18th Annual Workplace Class Action Report - 2022 Edition

736 Annual Workplace Class Action Litigation Report: 2022 Edition case was unique as a government enforcement action. Finally, the Court reasoned that one of the States, Texas, had an equally strong interest in resolving the case within its own district. As a result, the Court concluded Defendant failed to establish that any private-interest factor or public-interest factor weighed in favor of transfer, and several factors actually weighed against transfer. The Court therefore denied the motion to transfer venue. (lxxxii) Veterans ’ Class Actions Beaudette, et al. v. McDonough, 34 Vet. App. 95 (Vet. App. 2021). Plaintiffs, a retired marine who during five combat tours suffered multiple concussions that resulted in traumatic brain injury and rendered him legally blind and his wife, filed a class action alleging that Defendant, the Secretary of the U.S. Department of Veteran Affairs, had a policy denying Board review of veteran benefits under Congress’s Caregiver Program that was unconstitutional. The Caregiver Program provided that a veteran’s caregiver may receive certain benefits, including instruction and training to provide personal care services, technical support, counseling, and lodging and subsistence, mental health services, respite care, medical care, and a monthly stipend. Under the law, he continued eligibility of both the veteran and the caregiver is determined by periodic reassessments, and failure to participate in a reassessment results in revocation of Caregiver Program benefits. Id . at 101. Plaintiffs applied for the Caregiver Program, but the retired marine was recovering at the time from two major surgeries and could not take part in the in person examination. Defendant denied the veteran’s request to delay the examination and proceeded with reassessment using his medical records and found that he was longer eligible for the Caregiver Program based on its reassessment. Plaintiffs challenged the ruling through the Veterans Health Administration (“VHA”) appeals process and the petition was denied. Plaintiffs sought to appeal to the Board but received no response. Plaintiffs thereafter filed a petition with the Court for extraordinary relief in the form of a writ of mandamus. Plaintiffs also moved for certification of a class of claimants who received an adverse decision under the Caregiver Program, exhausted available review under the VHA, and had not been afforded the right to appeal to the Board. The Court found that Congress mandated judicial review of benefits decisions and has not clearly acted, as the law requires, to abrogate that express intent. The Court held that Plaintiffs established an indisputable right to Board review, the lack of an adequate administrative means of securing that right, and the propriety of extraordinary relief in these circumstances. Id . at 105. Accordingly, the Court issued a writ of mandamus. The Court also ruled that the class met the requirements of numerosity and commonality, as the proposed class was likely to be far larger than 40 members, and whether the Board-review prohibition was contrary to 38 U.S.C. § § 7104(a) and 511(a) was a legal question that was common to all members of the proposed class. The Court further determined that typicality was met because the main substantive issue raised by Plaintiffs was whether Board review was available for the Caregiver Program. The Court concluded that were it to deny class certification, Defendant could not guarantee that the VA would find and inform each past claimant of the right to appeal previous benefits decisions to the Board. Thus, the Court ruled that Plaintiffs established by a preponderance of the evidence that class action would be the superior method of resolving this controversy. For these reasons, the Court granted Plaintiffs’ motion for class certification. Clarkson, et al. v. Alaska Airlines, Inc., 2021 U.S. Dist. LEXIS 98123 (E.D. Wash. May 24, 2021). Plaintiff brought a class action asserting violations of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Specifically, Plaintiff alleged that Defendants’ compensation practices violated the USERRA by continuing to pay employees who took comparable non-military leave, i.e. , jury duty, bereavement, and sick leave, their full wages but failing to pay employees who took military leave their full wages. Plaintiff also alleged that Defendant Horizon’s “Virtual Credit” policy forced him into a lesser status than he held prior to his military leave, thereby denying Plaintiff certain seniority-based rights and benefits that would have accrued but for his military leave. For each of the months that Plaintiff took military leave while employed by Horizon, he received 2.45 flight credit hours per day for each day he was on leave pursuant to Horizon’s “Virtual Credit” policy. Id . at *5. The “Virtual Credit” policy applied to all forms of leave, military or otherwise. Plaintiff’s virtual credits were combined with his earned credits to determine his flight schedules, which were built and assigned using a Preferential Bidding System (“PBS”). Plaintiff generated the minimum required credit hours to be assigned a Line Holder schedule for each month he took military leave, with the exception of one month, where he was assigned to the lesser desirable reserve schedule. Defendants moved for summary judgment on the grounds that they were not required to pay employees who took military leave, nor did they provide any rights or benefits to employees who took non-military leave that were not also provided to employees who took military leave. The