Nathan Norimoto – Class Action Defense

February 5, 2024 by Gerald L. Maatman, Jr.

California Federal Court Denies Class Certification Of COVID-19 Vaccine Mandate Claims

By Gerald L. Maatman, Jr., Nathan K. Norimoto, Nick Baltaxe

Duane Morris Takeaways: On January 28, 2024, in Chavez, et al. v. San Francisco Bay Area Rapid Transit District, No. 22-CV-06119, 2024 U.S. Dist. LEXIS 14785 (N.D. Cal. Jan. 28, 2024), Judge William Alsup of the U.S. District Court for the Northern District of California denied class certification for a failure to accommodate religious beliefs claim premised on a workplace COVID-19 vaccine mandate. Specifically, the Court held that the putative class was not certifiable as the class failed to meet Rule 23(b)(3)’s predominance and superiority requirements. The decision is a good roadmap for employers dealing with the continuing fall-out of the COVID-19 pandemic.

Background Of The Case

Defendant San Francisco Bay Area Rapid Transit (“BART”) implemented a workplace policy mandating that all employees needed a COVID-19 vaccination by December 21, 2021. Id. at 2. In response, BART received 188 requests for religious exemption and accommodation. Id. While some employees did not complete the exemption application process, 148 employees submitted applications to BART, noting varying belief systems such as “Christianity,” “Catholic,” “Islamism,” or even personal belief systems such as being “anti tyranny [sic].” Id. at 3. A panel of BART employees then reviewed each application individually and conducted further interviews with the applicants before deciding to grant or deny the request. Id. at 5.

Of the 148 completed applications, BART granted 70 religious exemptions and denied 78. Id. Those who were denied were given the option to either comply with the mandate, retire, voluntarily resign, or be terminated. Id. In total, 36 employees either retired, resigned, or were terminated. Id. BART considered accommodation for the 70 employees who were granted exemptions, but ultimately did not provide any accommodations as they could not “identify a reasonable accommodation that did not place an undue hardship on the District.” Id. at 6. Of the 70 applicants who were denied accommodation, 37 resigned, retired, or were terminated. Id. BART additionally received 25 requests for medical exemptions, and eight medical exemptions were granted, with those employees being placed on unpaid leave that only ended upon vaccination. Id.

Plaintiff Gabriel Chavez and 16 other named plaintiffs filed a class action complaint alleging that BART’s policy violated Title VII, the First Amendment right to free exercise of religion under 42 U.S.C. § 1983, and California’s Fair Employment and Housing Act (“FEHA”). Id. at 7. Plaintiff sought to certify a class pursuant to Rule 23(b)(3) composed of “all employees employed by BART who (1) have been ordered to submit to a COVID-19 vaccination, (2) have sincerely held religious beliefs which prevent them from taking the vaccine, (3) have submitted a request for a religious exemption, and (4) were denied a religious accommodation.” Id. Plaintiff also proposed a second, alternative class consisting of all employees employed by BART who “(1) have been ordered to submit to a COVID-19 vaccination, (2) have sincerely held religious beliefs which prevent them from taking the vaccine, (3) have submitted a request for religious exemption and religious accommodation, and (4) whose request for a religious exemption were denied.” Id.

The Court’s Ruling

The Court examined the class certification requirements under Rule 23(b)(3), which provide that a plaintiff must establish “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. at *8. The Court held that Plaintiffs’ proposed class, as well as the proposed alternative class, did not satisfy the predominance and superiority requirements, and denied Plaintiffs’ certification motion. Id. at 23.

First, the Court examined the requirement of common issues predominating over any questions affecting only individual members. Id. at 11-20. With respect to Plaintiffs’ Title VII and FEHA claims, the Court noted that whether or not an individual had a bona fide religious belief – a requirement for both claims – there were too many individual systems of belief to examine. Id. at 12. The Court held that nearly every named plaintiffs’ application contained a distinct system of belief, and any examination of whether or not a request rested on a “bona fide religious belief” would necessarily require an individual inquiry into each plaintiffs’ belief system. Id. The Court expressed doubt that the various written or interview responses of one plaintiff will have any evidentiary impact on the bona fide religious belief of the class as a whole. Id.

Next, the Court held that BART’s undue hardship showing required an individualized inquiry of factual issues. Id. The Court noted that the potential class members are drawn from a large diversity of jobs – over a dozen unique jobs – and that accommodations reasonably considered for a “train conductor’s request bear no relation to the job functions and reasonable accommodations BART must consider when evaluating the exemption request of a manager of technology programs, a fire protection worker, or a police officer, or a senior operations supervisor liaison.” Id. 13-14. Further, the Court found that the inclusion of some union employees in the putative class also required individualized inquiries as the union’s contracted-for-rights “grant impacted workers certain rights, such as seniority, that BART is not required to transgress upon.” Id. at 14. Moreover, the Court indicated that a significant portion of the class would not be impacted by an “undue hardship” analysis, as 78 of the proposed members were not even considered for accommodation. Id. at 15. The Court did acknowledge that some aspects of the undue hardship consideration may be more amenable to common proof, but in light of the putative class’s “job diversity,” it reasoned that any undue hardship analysis “cannot be understood without an interrogation of individual employees’ job duties.” Id. at 16.

As to the Free Exercise of Religion Claims, the Court determined that those claims could not satisfy the predominance requirement. In doing so, it noted that “the sincerity and religious nature of plaintiffs’ belief is . . . an individualized issue.” Id. at 20. The Court found that each of the plaintiffs cited a “myriad” of religious and of personal experiences, along with refusal due to “CDC VARS data and concerns regarding health consequences, the Organization of American States Declaration of Rights of Indigenous Peoples, Senate Bill 1383 and Senate Bill 1159, among others.” Id. The Court concluded that the need to determine whether plaintiffs have met the bona fide religious belief threshold required individualized inquiries, which ultimately foreclosed class certification. Id.

Finally, the Court found that the putative class did not satisfy Rule 23(b)(3)’s superiority requirement. The Court reasoned that class members have “significant interest in the individual control of their claims.” Id. at 21-22. As an example, it noted that two potential class members have already brought individual actions against BART, and that seventeen other employees had filed suit in a third case. Id. at 22. The Court held that “[p]utative class members’ demonstrated interest in bringing and controlling these various litigations further reflects the significant monetary and emotional stakes at issue, and counsels against certification.” Id. In closing, the Court noted that given “the wide range of individual issues and proof” there will also likely be difficulties in managing the class action. Id.

Implications For Employers

The ruling in Chavez, et al. v. San Francisco Bay Area Rapid Transit District confirms that the need for individualized inquiries is a strong impediment to certifying a class action premised on COVID-19 vaccine accommodation theories of liability. This ruling stresses the specific importance of these individualized inquiries in the context of religious accommodations, which have recently been the subject of significant litigation after many employers implemented COVID-19 vaccine mandates in the workplace

January 23, 2024 by Gerald L. Maatman, Jr.

Ninth Circuit Vacates Class Certification Denial In Fresno State Title IX Lawsuit

By Gerald L. Maatman, Jr., Nathan N. Norimoto, Nick Baltaxe

Duane Morris Takeaways: On January 17, 2024, in Anders, et al. v. California State University Fresno, et al., No. 23-15265, 2024 U.S. App. LEXIS 1063 (9th Cir. Jan. 17, 2024), the Ninth Circuit vacated the U.S. District Court for the Eastern District of California’s decision to deny Plaintiffs’ renewed motion for class certification. Specifically, the Ninth Circuit held that the District Court erred by finding the named plaintiffs would not be adequate class representatives due a “speculative” conflict of interest that could develop at the remedy stage of the litigation. The Ninth Circuit remanded the action to the District Court for further proceedings. The ruling is required reading on the procedural aspects of class certification in discrimination cases in general, and with respect to how actual or perceived conflicts on interest in particular implicate the Rule 23 (a)(4) analysis.

Case Background

Plaintiffs Taylor Anders, Hennessey Evans, Abbigayle Roberts, Megan Walaitis, Tara Weir, and Courtney Walburger were all former members of the California State University, Fresno (“Fresno State”) women’s lacrosse team. Id. at *2. Plaintiffs brought class claims alleging effective accommodation and equal treatment under Title IX. Id. Plaintiffs sought an injunction that would prohibit Fresno State “from eliminating Fresno State’s women’s lacrosse team (or any other women’s varsity intercollegiate athletic opportunities at Fresno State) unless and until Fresno State is and will be in compliance with Title IX.” Id. at *5, fn. 4.

Plaintiffs “sought certification of classes consisting of current and future female students at Fresno State who have participated in or are able and ready to participate in women’s varsity intercollegiate athletics at Fresno State.” Id. at *3. The District Court denied Plaintiffs’ class certification motion in its entirety on the basis that the Plaintiffs were not adequate class representatives under Rule 23(a)(4), as their affiliation and contentions favored the women’s lacrosse team over other women’s varsity sports. Id. Plaintiffs appealed to the Ninth Circuit.

The Ninth Circuit’s Ruling

The Ninth Circuit vacated the District Court’s decision to deny class certification of the effective accommodation and equal treatment claims. Id. at *6.

First, the Ninth Circuit noted that to defeat adequacy under Rule 23(a)(4), any conflict of interest between the named Plaintiffs and the putative class members must be “actual” and not “speculative,” which only exists if the remedy sought precludes “structural assurance of fair and adequate representation for the diverse groups and individuals affected.” Id. at *4.

With respect to Plaintiffs’ effective accommodation claim, the Ninth Circuit opined that the District Court erred in finding Plaintiffs would not be adequate class representatives due to a “conflict of interest with members of their proposed class” because the District Court only “speculat[ed] as to conflicts that may develop at the remedy stage.” Id. For example, if Fresno State “reinstate[s] at least one women’s sports team,” the Ninth Circuit reasoned that it was only speculation that “plaintiffs would be able to advocate for the reinstatement of the women’s lacrosse team at the expense of other women’s teams.” Id. at *4-*5. At the remedies stage, however, the Ninth Circuit determined that Fresno State “can comply with Title IX without reinstating women’s sports teams by leveling down programs instead of ratcheting them up to achieve substantial proportionality between male and female athletics opportunities.” Id. at *5 (internal quotation marks and citation omitted). Further, the Ninth Circuit pointed out that if Fresno State reinstates women’s sports teams at the remedies stage, the District Court did not identify any “evidence suggesting plaintiffs would have input into which teams are to be reinstated.” Id.

In addition, the Ninth Circuit held that the District Court erred by failing to “independently analyze the equal treatment claim,” and evaluate whether a conflict of interest exists with the respect to the claim. Id. at *5. The Ninth Circuit directed the District Court to analyze the Plaintiffs’ equal treatment claim in light of the “conclusion that the injunctive relief Plaintiffs seek under their effective accommodation claim does not necessarily require reinstatement of the women’s lacrosse team” and to “specifically assess whether a conflict exists under the equal treatment claim.” Id. at *5-*6.

In conclusion, the Ninth Circuit vacated the denial of class certification and remanded to the District Court for further proceedings on the class certification issue. Id. at *6.

Key Takeaways

The Ninth Circuit’s decision in Anders makes it easier for plaintiffs to certify a class in the Title IX context by messaging that challenges to the adequacy of a class representative in a Title IX lawsuit must be based on an actual conflict of interest. Importantly, any challenges to class certification based on the fairness of a potential remedy will likely fail as too “speculative.” Any entity that must comply with Title IX, and finds itself the potential victim of a class action based on Title IX, should keep this distinction in mind.

December 18, 2023 by Gerald L. Maatman, Jr.

Hawaii Federal Court Denies Motion To Certify Covid-19 Vaccination Class Action Brought Under Title VII And The ADA

By Gerald L. Maatman, Jr., Nick Baltaxe, and Nathan K. Norimoto

Duane Morris Takeaways: In O’Hailpin v. Hawaiian Airlines Inc., No. 22-CV-00532, 2023 U.S. Dist. LEXIS 220734 (D. Haw. Dec. 12, 2023), Judge Jill Otake of the U.S. District Court for the District of Hawaii denied a motion for class certification brought by current and former employees of Hawaiian Airlines alleging discrimination under Title VII and the ADA against individuals who requested medical or religious accommodations from their employers’ COVID-19 vaccination policy. The decision is pro-defendant and well worth a read in terms of strategies to oppose and prevent class certification of employment discrimination claims.

Case Background

Riki O’Hailpin, along with eight other named plaintiffs (“Plaintiffs”), brought a putative class action against Defendant Hawaiian Airlines Inc. (“Hawaiian”), alleging that Hawaiian violated Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”) by discriminating against employees who requested medical or religious accommodations from Hawaiian’s Covid-19 vaccination policy. In response to the Covid-19 pandemic, President Biden issued Executive Order No. 14042, a Federal Contractor Mandate that required certain employers to implement a mandatory vaccination policy. Under the Federal Contractor Mandate and related guidelines, Hawaiian was required to have its unvaccinated employees masked and socially distanced in the workplace; thus, any exemptions to the vaccine policy would need to comply with those masking and distancing requirements. Id. at *3. Plaintiffs challenged Hawaiian’s policy that required all employees “to be vaccinated November 1, 2021 unless they had a reasonable accommodation for a disability as defined under the ADA or a sincerely held religious belief that conflicted with their ability to receive a Covid-19 vaccine.” Id. at *3-4.

Hawaiian received 568 reasonable accommodation requests related to the vaccine policy, including 496 for religious accommodations and 72 for medical exemptions. Id. at *3. Hawaiian subsequently examined every work position and every work location to determine whether masking and distancing were feasible and concluded that, for a majority of the positions, they were not. Hawaiian also implemented a “Transition Period Testing Program” that provided a deadline for unvaccinated employees to test and a 12-month unpaid leave of absence for those who did not get vaccinated and were not granted an accommodation. Id. at *6. The complaint alleged Hawaiian engaged in a “pattern and practice of discrimination” under Title VII and the ADA by denying medical and religious accommodation requests and that the Transition Period Testing Program was a pretext for denying accommodation requests. Id. at *17. Plaintiffs sought to represent all current and former Hawaiian employees whose religious and medical vaccine accommodation requests were denied under Hawaiian’s vaccination policy, and proposed a primary class of the approximately 500 employees whose accommodation requests were denied as well as sub-classes, broken down by medical and religious requests, of individuals whose requests were either denied or rescinded by Hawaiian. Id. at *9. Plaintiffs moved for class certification under Rule 23 of the Federal Rules of Civil Procedure. Id.

Plaintiffs’ Motion For Class Certification

The Court evaluated Plaintiffs’ motion for class certification under Rule 23’s requirements of numerosity, adequacy, predominance, typicality, and commonality. First, it expressed skepticism that one of Plaintiffs’ proposed sub-classes satisfied the numerosity requirement. Id. at *12-13. The Court concluded that certification of a sub-class of 14 individuals “whose medical exemption requests were rescinded, such that no final decision was reached … could likely be denied based on numerosity grounds alone.” Id. at *13. At the same time, the Court determined that Plaintiffs satisfied Rule 23’s adequacy of counsel requirement. Id. at *13-14. Hawaiian did not contest the requirement with respect to the named Plaintiffs and their counsel. Id. at *14.

The Court further evaluated whether Plaintiffs’ “pattern and practice” theory of liability met Rule 23’s commonality, typicality, and predominance requirements, with a specific focus on issues susceptible to “generalized proof” versus “individualized proof.” Id. at *20-21. The Court found that Plaintiffs could not satisfy the remaining Rule 23 requirements due to the individualized assessments into each medical and religious accommodation request to determine whether Hawaiian’s treatment of each request constituted actionable discrimination under Title VII and the ADA. Id. at *23-57.

With respect to the sub-classes of individuals who were denied religious accommodation requests, the Court noted that the inquiries into each employee’s “sincerely held religious belief and secular preference” and/or whether the accommodation would cause an “undue hardship” to Hawaiian would require too many individualized assessments to satisfy predominance under Rule 23. Id. at *27–*42. For example, the Court noted the analysis of whether the accommodation would impose an undue hardship on Hawaiian would include an individualized review of each position, location, union status, and the ability to mask and social distance. Id. at *37-39.

For the medical accommodation sub-classes, the Court noted that the ADA extends “only to qualified individuals … who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. at *44 (quoting 42 U.S.C. § 12111(8)). For this reason, the Court opined that the reasonableness of the accommodation “is necessarily individualized, based on the person’s position and location, and the extent to which an accommodation would amount to an undue hardship on Hawaiian.” Id. at *52. In light of the individualized inquiries to determine the reasonableness of each accommodation (masking, social distancing, or testing) for each qualified individual, the Court determined that Plaintiffs did not meet their “burden to explain why commonality, typicality, and predominance are met” for the ADA subclasses. Id. at *55-56.

Accordingly, the Court denied Plaintiffs’ motion for class certification and held that a class action was not “the superior way” for Plaintiffs’ claims to proceed. Id. at *56.

Implications For Employers

This decision represents a helpful roadmap for employers to defend not only against potential Covid-19 vaccine-related class action complaints, but also against putative class actions brought under Title VII and the ADA. The Court’s ruling underscores the importance of individualized inquiries for religious and medical accommodation requests under Title VII and the ADA, and offers tools to defend against the plaintiff’s burden of demonstrating predominance, typicality, and commonality at the class certification stage of the litigation.