18th Annual Workplace Class Action Report - 2022 Edition

76 Annual Workplace Class Action Litigation Report: 2022 Edition lacked specific jurisdiction. Id . at 6. The Court agreed that each of the out-of-state named Plaintiff must meet the requirements of specific jurisdiction and establish that his or her claims arose out of Defendant’s contacts with Texas. Id . at 7. The Court reasoned that Plaintiffs failed to plead that they suffered any injury in Texas. Plaintiffs alleged potential factual connections to Texas, including working for managers who lived in Texas and the fact that there were younger employees who were not terminated who lived in Texas. The Court determined that these facts failed to establish a sufficient nexus the support specific jurisdiction. The Court therefore ruled that it lacked jurisdiction over the out-of-state named Plaintiffs, and it granted Defendant’s partial motion to dismiss. Raymond v. Spirit Aerosystems Holdings , 2021 U.S. Dist. LEXIS 64534 (D. Kan. April 2, 2021). In their collective action, Plaintiffs alleged that Defendant’s reduction-in-force that terminated the employment of the named Plaintiffs and more than 200 other workers eliminated a disproportionate number of Defendant’s older employees and was thus discriminatory under the Age Discrimination in Employment Act ("ADEA") and the Americans With Disabilities Act ("ADA"). During discovery, Defendant filed a motion to quash the subpoena of Larry Lawson, Defendant’s former CEO. The Court denied the motion. Defendant argued Lawson had no unique personal knowledge of any issue relevant to the claims or defenses in this case, and "anything Plaintiffs could learn from Lawson has been or could be obtained more conveniently, efficiently, and cost effectively from other witnesses." Id . at *7-8. Plaintiffs contended that Defendant overlooked important facts showing Lawson’s key role in the layoff and refusal to rehire Plaintiffs, and relied on a heightened “apex” standard which was not the law in this jurisdiction and had “no application to a former CEO.” Id . at *9. The Court explained that the apex doctrine "recognizes that depositions of high-level officers severely burden those officers and the entities they represent, and that adversaries might use this severe burden to their unfair advantage." Id . at *13. The Court noted that as Lawson was a former CEO, Defendants failed to articulate any actual hardship either Defendant or Lawson would incur if he were deposed. As for whether the deposition would be duplicative, the Court noted that Plaintiffs had not deposed many of the Spirit employees named by Defendant who actually made the termination/hiring decisions and might have some duplicative knowledge. Id . at *18. The Court reasoned that even if Lawson contended that he did not have any personal knowledge of the layoffs, the mere denial of personal knowledge did not preclude the taking of his deposition. The Court thus held that Defendant only offered conclusory statements as to how it, or Lawson, would be burdened by the deposition or how it would be inconvenient. Accordingly, the Court denied Defendant’s motion to quash the subpoena. (iii) Pay Policies In ADEA Collective Action Litigation Abe, et al. v. Virginia Department Of Environmental Quality, 2021 U.S. Dist. LEXIS 66290 (E.D. Va. April 5, 2021). Plaintiffs, a group of employees, filed a collective action alleging that their employer’s “past practice of using pay history to determine new hire’s salary perpetuates the gender wage gap and violates the EPA.” Id . at *3. Plaintiffs contended that the Court should adopt the reasoning of the Ninth Circuit and hold that prior salary history can never constitute a “factor other than sex” defense under the EPA, either alone or in combination with other factors. Id . at *4. The Court declined to do so. The Court agreed with Defendant that the Fourth Circuit “has not delineated the precise circumstances under which an employer may rely on prior salary as an affirmative defense in an EPA case.” Id . at *5. The Court nevertheless held, relying on Spencer v. Virginia State University , 919 F.3d 199, 202-03 (4th Cir. 2019), that the Fourth Circuit “has clearly indicated that it does not prohibit an employer from doing so.” Id . The Court noted that Spencer involved a female sociology professor who alleged that she had been discriminated against in terms of her compensation because she was paid less than two comparable male professors whose salary was set as a percentage of their previous salaries as administrators at the same university. The Fourth Circuit determined that the university’s decision to set starting salaries for those purported comparators in that way established that the alleged pay differential was due to a factor other than sex. The Court interpreted this to mean that “at minimum, the Fourth Circuit does not prohibit employers from raising prior salary as an affirmative defense in an EPA case.” Id . at *6. The Court further rejected Plaintiffs’ argument that Defendant should at least have to prove that its use of salary history is job- related, as they argued the Fourth Circuit held in EEOC v. Maryland Insurance Administration, 879 F.3d 114 (4th Cir. 2018). The Court opined that it need not resolve that question because it was not necessary to do so to decide the narrow issue before the Court of whether Defendant could “raise prior salary as an affirmative defense.” Id . at *7. Based on the Fourth Circuit’s decision in Spencer , the Court held that it could and denied Plaintiff’s motion to strike the employer’s affirmative defense that was based on prior salary.