united states district court southern …...2017/06/27 · case 1:10-cv-06950-at-jcf document 495...

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

H. CRISTINA CHEN-OSTER; SHANNA ORLICH; ALLISON GAMBA; and MARY DE LUIS,

Plaintiffs,

-against-

GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC.,

Defendants.

No. 10 Civ. 6950 (AT) (JCF)

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR CERTIFICATION OF AN INTERLOCUTORY APPEAL

Case 1:10-cv-06950-AT-JCF Document 495 Filed 05/19/17 of 53

TABLE OF CONTENTS

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I. INTRODUCTION ............................................................................................................. 1

II. BACKGROUND ............................................................................................................... 2

A. Each of the Four Named Plaintiffs Seeks Reinstatement and Has Pleaded Sufficient Facts to Warrant that Remedy. .............................................................. 2

1. Mary De Luis and Allison Gamba ......................................................................... 2

2. Christina Chen-Oster and Shanna Orlich ............................................................... 3

B. Goldman Misstates the Factual Record Relating to Its Current Practices. ............ 4

III. ARGUMENT ..................................................................................................................... 9

A. The Court’s Holding that Former Employees Seeking Reinstatement Have Standing to Seek Injunctive Relief is Not Appropriate for Interlocutory Appeal. ................................................................................................................. 10

1. There is no substantial ground for difference of opinion. .................................... 10

a. Dukes did not consider whether former employees seeking reinstatement had an interest in enjoining discriminatory policies. ........................................................................................ 11

b. There is no disagreement among courts in this District. .............. 12

c. There is no disagreement among Courts of Appeal. .................... 14

2. Interlocutory appeal of this Court’s order will not materially advance the ultimate termination of the litigation. .................................................................. 17

a. The substantive law of Title VII permits monetary remedies where there is disparate impact and this relief will be addressed through a (b)(3) class. ................................................. 17

b. A Rule 23(b)(2) Class is appropriate even if Goldman tweaked or stopped its challenged practices. ............................... 18

c. Discovery regarding Goldman’s practices will be updated before trial no matter which prong of Rule 23 is implicated. ...... 19

d. An interlocutory appeal would splinter and slow the class certification proceedings, thus slowing the termination of this litigation. ............................................................................... 20

B. The Court’s Holding That Reinstatement Is a Remedy Available to Plaintiffs Is Not Appropriate for Interlocutory Appeal. ....................................... 21

1. There is no substantial ground for difference of opinion. .................................... 21

2. This issue does not present a “controlling question of law.” ............................... 23


TABLE OF CONTENTS (continued)

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-ii-

3. Interlocutory appeal will not materially advance the litigation. .......................... 24

IV. CONCLUSION ................................................................................................................ 25


TABLE OF AUTHORITIES

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-iii-

CASES

Abortion Rights Mobilization, Inc. v. Regan, 552 F. Supp. 364 (S.D.N.Y. 1982) .............................................................................................. 9

Ahrenholz v. Bd. of Trustees, 219 F.3d 674 (7th Cir. 2000) ..................................................................................................... 23

Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998) ..................................................................................................... 16

Baricuatro v. Indus Personnel & Mgmt. Servs., Inc., No. 11 Civ. 2777, 2013 WL 6072702 (E.D. La. Nov. 18, 2013) .............................................. 16

Century Pacific, Inc. v. Hilton Hotels Corp., 574 F. Supp. 2d 369 (S.D.N.Y. 2008) ....................................................................................... 10

Chen-Oster v. Goldman, Sachs & Co., 2015 WL 4619663 (S.D.N.Y. Aug. 3, 2015) ............................................................................ 20

Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016) ........................................................................................................ 10

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) .................................................................................................................... 9

Cromer Fin. Ltd. v. Berger, Nos. 00 Civ. 2284, 00 Civ. 2498, 2001 WL 935475 (S.D.N.Y. Aug. 16, 2001) ...................... 14

Decora, Inc. v. DW Wallcovering, Inc., 901 F. Supp. 161 (S.D.N.Y. 1995) ............................................................................................ 23

Dorris v. City of McKinney, No. 4:16 Civ. 00069, 2016 WL 5811990 (E.D. Tex. Oct. 4, 2016) ............................................ 12

Drayton v. W. Auto Supply Co., No. 01 Civ. 10415, 2002 WL 32508918 (11th Cir. Mar. 11, 2002) ......................................... 15

Easterling v. Conn., Dep’t of Corr., 265 F.R.D. 45 (D. Conn. 2010), modified, 278 F.R.D. 41 (D. Conn. 2011) ............................. 18

Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ............................................................................................... 14, 15

Etuk v. Blackman, 748 F. Supp. 990 (E.D.N.Y. 1990) ............................................................................................ 19

Etuk v. Slattery, 936 F.2d 1433 (2d Cir. 1991) .................................................................................................... 19

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) ..................................................................................................... 16


TABLE OF AUTHORITIES (continued)

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-iv-

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .................................................................................................................. 19

German v. Fed. Home Loan Mortg. Corp., 896 F. Supp. 1385 (S.D.N.Y. 1995) .......................................................................................... 17

Gilbert v. Donahoe, 751 F.3d 303 (5th Cir. 2014) ..................................................................................................... 14

Gulino v. City of NY, 234 F. Supp. 2d 324, (S.D.N.Y. 2002) ........................................................................ 1, 9, 13, 17

Hirst v. Skywest, Inc., No. 15 Civ. 02036, 2016 WL 2986978 (N.D. Ill. May 24, 2016) ............................................ 16

In re Conseco Life Ins. Co. Life Trend Ins. Marketing & Sales Practice. Litig., No. 10 Civ. 2124, 2011 WL 6372412 (N.D. Cal. Dec. 20, 2011) ............................................ 16

In re Facebook, Inc., IPO Sec. & Derivative Litig., 986 F. Supp. 2d 524 (S.D.N.Y. 2014) ....................................................................................... 23

In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., Nos. MDL 1358, et al., 2005 WL 39918 (S.D.N.Y. Jan. 6, 2005) ........................................... 14

In re Worldcom, Inc., No. M-47 HB, 2003 WL 21498904 (S.D.N.Y. June 30, 2003) ................................................ 23

Jacques v. DiMarzio, Inc., 216 F. Supp. 2d 139 (E.D.N.Y. 2002) ....................................................................................... 17

Janes v. Triborough Bridge and Tunnel Auth., 889 F. Supp. 2d 462 (S.D.N.Y. 2012) ................................................................................. 12, 13

Kassman v. KPMG LLP, 925 F. Supp. 2d 453 (S.D.N.Y. 2013) ....................................................................................... 12

Kastroll v. Wynn Resorts, Ltd., No. 2:09 Civ. 2034, 2013 WL 496409 (D. Nev. Feb. 6, 2013) ................................................. 15

Klinghoffer v. S.N.C. Achille Lauro Ed Altri–Gestione Motonave Achille Lauro In Amministrazione Straordinaria, 921 F.2d 21 (2d Cir. 1990) .......................................................................................................... 9

Kubicek v. Westchester Cnty., No. 08 Civ. 372, 2013 WL 5423961 (S.D.N.Y. Sept. 27, 2013) ................................................ 12

McPartland v. American Broadcasting Companies, Inc., No. 83 Civ. 471, 1987 WL 14907 (S.D.N.Y. July 21, 1987) .................................................... 21

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (2d Cir. 2013) ...................................................................................................... 24

Morris v. Flaig, 511 F. Supp. 2d 282 (E.D.N.Y. 2007) ....................................................................................... 23



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Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) .................................................................................................. 2, 21

New York City Transit Auth. v. State Div. of Human Rights, 78 N.Y.2d 207 N.Y.S.2d 49 (1991) .......................................................................................... 25

Oakley v. Verizon Commc’ns Inc., 09 Civ. 9175, 2012 WL 335657 (S.D.N.Y. Feb. 1, 2012) ......................................................... 13

Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013) ...................................................................................................... 18

Port Wash. Teachers’ Ass’n v. Bd. of Educ. Of Port Wash. Union Free School Dist., 478 F.3d 494 (2d Cir. 2007) ...................................................................................................... 11

Roberts v. Target Corp., No. 11 Civ. 951, 2012 WL 2357420 (W.D. Okla. June 20, 2012) ............................................ 16

Robinson v. Blank, No. 11 Civ. 2480, 2013 WL 2156040 (S.D.N.Y. May 20, 2013) ............................................... 12

Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) ...................................................................................................... 19

Sass v. MTA Bus Co., 6 F. Supp. 3d 238 (E.D.N.Y. 2014) ........................................................................................... 24

Taylor v. Resolution Trust Co., 56 F.3d 1497 (D.C. Cir. 1995) .................................................................................................. 14

Tsirelman v. Daines, 794 F.3d 310 (2d Cir. 2015) ...................................................................................................... 12

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ........................................................................................................... passim

Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033 (9th Cir. 2006) ................................................................................................... 14

Youngers v. Virtus Inv. Partners Inc., No. 15 Civ. 8262, 2017 WL 65327 (S.D.N.Y. Jan. 6, 2017) .............................................. 20, 25

STATUTES

28 U.S.C. § 1292(b) ........................................................................................................ 1, 9, 14, 22 42 U.S.C. § 2000e-5 ...................................................................................................................... 22 42 U.S.C. § 2000e-5(g)(1) ............................................................................................................ 22



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RULES

Fed. R. Evid. 201(b)(2) ................................................................................................................... 8 Rule 23 .................................................................................................................................. 4, 7, 20 Rule 23(b)(2) .......................................................................................................................... passim Rule 23(b)(3) .......................................................................................................................... passim Rule 23(c)(4) ......................................................................................................................... 1, 6, 18 Rule 23(f) .................................................................................................................................. 1, 20

OTHER AUTHORITIES

3 Emp. Discrim. Coord. Analysis of Federal Law § 141:17........................................................... 9 N.Y.C. Admin. Code § 8-120 ....................................................................................................... 25 N.Y.C. Admin. Code § 8-130 ....................................................................................................... 24 N.Y.C. Admin. Code § 8-502 ....................................................................................................... 25 N.Y.C. Local L. No. 85 § 7 ........................................................................................................... 24


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I. INTRODUCTION

Defendants Goldman, Sachs & Co. and The Goldman Sachs Group, Inc.’s (“Goldman’s”)

motion fails to meet the exceptional circumstances warranting interlocutory review under 28

U.S.C. § 1292(b). In particular, Goldman fails to identify a “substantial ground for a difference

of opinion” relating to whether former employees seeking reinstatement may be class

representatives under Rule 23(b)(2). Gulino v. City of NY, 234 F. Supp. 2d 324, 325 (S.D.N.Y.

2002). There is no authority in this District or elsewhere that contradicts the Court’s

commonsense finding that Plaintiffs, as former employees, have standing to represent a Rule

23(b)(2) class when, as here, they seek reinstatement.

Likewise, interlocutory review on the Rule 23(b)(2) standing issue would not materially

advance the ultimate termination of the litigation. Ongoing discovery of Goldman’s current

challenged practices, and the unjustified adverse impact they cause, will occur pre-trial whether

the structure of the class is under Rule 23(b)(3), (b)(2), (c)(4), or a hybrid. And, the type and

amount of monetary remedies (such as backpay) to which the class is entitled, and the

determination over what time period disparate impact or treatment has occurred, likewise do not

depend on whether a (b)(2) class accompanies a (b)(3) class. Rule 23(b)(3) is the vehicle

through which the class is entitled to the monetary remedies permitted by Title VII and state law,

whether under a theory of disparate impact, disparate treatment, or both. Once a class decision is

rendered, the vehicle through which to review that decision is Rule 23(f), if appropriate. An

appeal now would only facilitate duplicative and splintered appeals on core class certification

issues, a piecemeal process that is inefficient and burdensome to the courts and the parties.

Finally, Goldman asserts that interlocutory appeal is appropriate for the Court’s holding

that reinstatement is a remedy available to Plaintiffs. Goldman is wrong. Indeed, the Second

Circuit has held that a former employee plaintiff may seek reinstatement for retaliation. Muller


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v. Costello, 187 F.3d 298, 315 (2d Cir. 1999). There is nothing new here. The Motion should be

denied.

II. BACKGROUND

Goldman attempts to recast and re-litigate myriad case management and factual issues as

abstract issues of law.1 Notably, Goldman’s characterizations of the record are incorrect and

misleading. Below, Plaintiffs focus their rebuttal only on the factual and procedural background

of the two key issues in this motion: (a) the remedies Plaintiffs seek (and have always sought),

and (b) the status of the challenged practices in this lawsuit.

A. Each of the Four Named Plaintiffs Seeks Reinstatement and Has Pleaded Sufficient Facts to Warrant that Remedy.

1. Mary De Luis and Allison Gamba

In denying Goldman’s motions to dismiss the claims of Allison Gamba and Mary De

Luis, the Court found that both seek reinstatement in this lawsuit. ECF No. 479 (Apr. 12, 2017

Order (hereinafter “Order”)) at 15-16, 20; see also ECF No. 411 (Second Amended Complaint

(“SAC”)) ¶ 205 (j); ECF No. 486 (Supplemental Complaint (“Supp. Compl.”)) ¶¶ 16, 21-22.

The Court also determined that Ms. De Luis plausibly pled sufficient unlawful acts to

support a request for reinstatement. Order at 15-16. In particular, Ms. De Luis alleged that she

was evaluated unfairly and paid less than her male colleagues because of her gender. ECF No.

411 (SAC) ¶¶ 139-42. Goldman failed to remedy its discriminatory conduct despite her repeated

complaints. Id. ¶¶ 140-42. After she joined the lawsuit, Ms. De Luis was forced to resign her

position at Goldman “due to the consistent and systematic discrimination she had suffered over

her nearly six years at Goldman Sachs” and due to Goldman’s denial of her request for a transfer, 1 Goldman, for example, improperly reargues intervention, an issue it has lost on twice, in two comprehensive opinions issued by this Court and Judge Francis. ECF No. 485 (Memorandum of Law in Support of Defendants’ Motion for Certification of an Interlocutory Appeal (“Defs’ Mot.”)) at 5-6; see ECF Nos. 479 (Torres opinion), 364 (Francis opinion).


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which was a “pretext for [Goldman’s] retaliatory conduct.” ECF No. 486 (Suppl. Compl.) at ¶¶

5-11.

Similarly, for Ms. Gamba, the Court rejected Goldman’s argument that “reinstatement is

not feasible,” and found that, drawing all inferences in her favor at the pleading stage, “it is

premature to foreclose” reinstatement as a remedy. Order at 20-21. Ms. Gamba alleged that

throughout the course of her employment, she was evaluated more harshly than her male

colleagues and paid less in compensation. ECF No. 411 (SAC) ¶¶ 126-34. Throughout the

course of her employment, Ms. Gamba complained about discriminatory conduct at Goldman,

and Goldman took adverse actions against her as a result. Id. ¶¶ 128, 134. Ms. Gamba also

alleged that Goldman denied her promotion and business opportunities because of her gender.

ECF No. 411 (SAC) ¶¶ 125-33. After denying her the opportunity to transfer out of a failing

business unit, Goldman later terminated Ms. Gamba when it divested itself of that unit. Id. ¶ 16.

2. Christina Chen-Oster and Shanna Orlich

Goldman’s assertion that Christina Chen-Oster and Shanna Orlich do not seek

reinstatement is completely false. ECF No. 411 (SAC) ¶ 205 (j) (seeking reinstatement). And,

like Ms. De Luis and Ms. Gamba, Ms. Chen-Oster and Ms. Orlich pleaded sufficient facts to

support their request.

In particular, Ms. Chen-Oster alleges that due to Goldman’s unlawful discrimination, she

was denied business opportunities and promotions. Id. ¶¶ 71-99. She was also reviewed more

harshly and paid less than her male counterparts. Id. ¶¶ 73, 75, 79, 83, 94, 96, 98, 100. In 1997,

she reported to Goldman that she had been attacked by a male colleague. Id. ¶¶ 77-78. Goldman

retaliated by taking away some of her job duties and responsibilities. Id. Ms. Chen-Oster later

resigned “due to the consistent and systematic discrimination that she suffered over her eight

years at” the company. Id. ¶ 102.


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Ms. Orlich alleges that Goldman denied her “business opportunities, training and

mentorship,” paid her less than her male colleagues, and denied her promotions to positions that

she was qualified to hold. Id. ¶¶ 105, 108-123. Goldman also retaliated against Ms. Orlich

when she complained about its discriminatory conduct, and unlawfully terminated her in a

reduction-in-force (“RIF”). Id. ¶ 124 (incorporating Orlich EEOC charge); ECF No. 5

(Complaint) ¶ 135, Ex. 3 (Orlich EEOC charge). Goldman did not terminate similarly situated

male co-workers. Id. ¶ 124 (incorporating Orlich EEOC charge) & Ex. 3 (Orlich EEOC charge).

Whether any of the Plaintiffs ultimately will be awarded the equitable remedy of reinstatement is

a question for the Court at summary judgment or trial. For purposes of this motion, and as the

Court has already decided, there is no doubt that they have sufficiently pleaded it.

B. Goldman Misstates the Factual Record Relating to Its Current Practices.

While a motion for interlocutory appeal of a pleading decision is an odd forum for

Goldman to make self-serving assertions about the facts and procedural history of the Rule 23

proceedings to date, Plaintiffs nonetheless address Goldman’s misstatements of the record in

four main areas relating to alleged changes in Goldman’s employment practices.

First, Goldman asserts that the parties have not conducted any discovery regarding

Goldman’s current performance evaluation and compensation-setting practices.2 This is

demonstrably false. Plaintiffs have sought discovery and developed extensive evidence attacking

Goldman’s challenged employment policies that remain current. See ECF No. 404 (Pls. Reply to

Defs.’ Opp. to Mot. to Intervene (“Pls. Intervention Repl.”)) at 1 & n.1. Goldman unilaterally

chose December 31, 2011, as the cut-off date for certain data discovery because, in its own

words, “there must be a cut-off point so that the parties can focus on completing this phase of

discovery without the end date being a moving target.” ECF No. 404 (Pls. Intervention Repl.) at 2 Goldman appears not to challenge that its promotion system remains consistent.


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2. Plaintiffs never agreed to 2011 as a general discovery limitation, and the Court scheduling

orders reflect otherwise. See, e.g., ECF No. 172, 184, 201, 211.

In fact, discovery continued up until the Court-ordered discovery stay entered on

December 12, 2013, which recognized that documents were still being produced after an earlier

September 23, 2013 cut-off. This is approximately two years after Goldman claims discovery

ended. See, e.g., ECF No. 211 at 1, n.1 (“Discovery not related to class expert opinions will be

suspended from September 30 [2013] and during the pendency of the expert discovery and class

briefing, except that non-expert discovery served on either party as of September 23, 2013 will

be responded to.”); Id. n.3 (“The date for the close of discovery after class certification briefing

is concluded shall be revisited if needed.”); see also ECF No. 172 at 2 n.2 (“The scope of post-

class certification briefing discovery to be determined, as needed, by the parties and the Court

after the class certification briefing is completed.”). Accordingly, the class certification record

consists of materials dating well beyond 2011. See, e.g., ECF No. 248-27 (List of Materials

Reviewed by Wayne F. Cascio) (citing materials related to compensation metrics and

performance reviews dating to 2012). Even Goldman’s expert relied on materials from October

2013. See, e.g., ECF No. 294 (Report of Michael A. Campion, Ph.D, Dec. 11, 2013) at 19 (citing

October 10, 2013 deposition of David Landman, which also discussed practices in 2012-2013).3

Goldman also submitted materials purporting to describe the work environment up to and

including 2014. See, e.g., ECF No. 286, ¶ 5 (Decl. of Lora Robertson); ECF No. 288, ¶ 15

(Decl. of Carolyn Sabat); ECF No. 289 (Decl. of Susan Jane Scher, signed June 27, 2014 and

describing work in present tense); ECF No. 290 (Decl. of Clare Scherrer, signed June 27, 2014

3 Whether the date that the record was functionally stayed is 2011 (as Goldman incorrectly asserts), 2013 (the date of the last discovery stay order), 2014 (when the parties had a two-day hearing on class certification) or later does not matter legally, though the record clearly contradicts Goldman’s factual assertion regarding the discovery cut-off.


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and describing work in present tense); ECF No. 291 (Decl. of Megan Taylor, signed June 30,

2014 and describing work in present tense); ECF No. 292 (Decl. of Kristine Wilson, signed June

30, 2014 and describing work in present tense).

Second, Goldman incorrectly claims that class certification under Rule 23(b)(2) was not

fully briefed. Goldman already lost this argument in its objections on its motion to intervene.

ECF No. 410 (Aug. 3, 2015 Order) at 22. In rejecting Goldman’s argument, Judge Francis held

that “[f]ollowing Judge Sand’s decision [on Goldman’s motion to strike class claims], the

plaintiffs pursued the case as if a Rule 23(b)(2) class were still viable, and they moved for

certification in part on that basis. To the extent that defendants chose to treat the striking of the

class allegations as immutable, they cannot now assert prejudice based on their decision to defer

development of evidence related to an injunctive relief class.” ECF No. 410 (Aug. 3, 2015

Order) at 23-24.

It is important to be clear that Goldman in fact did not defer the development of any

class-related evidence, nor could it to responsibly oppose certification here. Goldman’s current

argument about Rule 23(b)(2) is premised on the erroneous notion that Goldman’s practices

would not be the subject of a Rule 23(b)(3) inquiry and subsequent merits finding on the

disparate treatment and/or disparate impact of its challenged practices for the purposes of

awarding backpay and other monetary relief. Goldman’s discriminatory practices are squarely at

issue regardless of whether the class is certified under (b)(3), a (b)(2)/(b)(3) hybrid, and/or as a

(c)(4) issues class. Goldman’s characterization of the factual record as somehow closed, even

for trial, is wrong: scrutiny of Goldman’s challenged policies at trial cannot be avoided.

Third, contrary to Goldman’s self-serving expert declarations filed in 2015, there is no

evidence that the challenged practices described in class certification briefing in 2014 “have


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changed in material respects.” Defs’ Mot. at 6. The declarations of Drs. Michael Campion and

Michael Ward simply state that those defense experts believe, presumably based on Goldman’s

representations, that the record ended in 2011. ECF No. 393 (Campion Decl.) ¶ 2 (“I understand

[the record] did not include evidence about Goldman Sachs’ employment practices and

professionals after year-end 2011.”); ECF No. 399 (Ward Decl.) ¶ 3 (Ward, who received data

through a 2011 cut-off imposed by Goldman, simply notes that the record ended in 2011.). Both

make the unremarkable observation that they would need to analyze current data to look for

current adverse impact. See, e.g., ECF No. 393 (Campion Decl.) ¶ 2-12 (“I would want to study

the aspects of Goldman Sachs’ current employment practices that . . . cause any gender

disparities. . . .”); ECF No. 399 (Ward Decl.) ¶¶ 8-10 (same). That is always true in every class

case; there is a time delay between the grant of class certification and a trial on the merits. This

is also true regardless of which prongs of Rule 23 are implicated in the certification order.

Updating the record will properly be addressed during the class-wide merits and remedies phases

of the case. See ECF No. 410 (Aug. 3, 2015 Order) at 23 (holding that the appropriate scope of

relief is a consideration for “the remedial phase of this case”).

Fourth, Goldman’s other purported evidence about current practices, including its

corporate executive declarations, actually confirms that the discriminatory policies – including

forced ranking (“manager quartiling”) and Goldman’s version of 360 reviews – have not

changed. ECF No. 395 (Landman Decl.) ¶¶ 7-13 (discussing the policies; omitting any argument

that the promotion system has changed, and thus conceding it has not for this purpose). Notably,

Goldman does not claim that it has started appropriate monitoring, corrected any past

discrimination, or even validated any of the challenged practices in accordance with SIOP

principles. See, e.g., ECF No. 260 (Expert Report of Dr. Wayne Cascio) ¶ 71 (noting “that [in


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2011 and 2012] the only formal validation that [Goldman] chose to sponsor was … (b) in the

wake of specific regulatory requirements, and following the filing of this lawsuit, certain metrics

used to measure employee performance and risk management were examined.”). Even if taken

as true, Goldman’s reliance on the declaration of Michael Perloff, ECF No. 397, which has been

the subject of prior discovery and briefing, simply suggests that Goldman’s changes to its

evaluation and compensation processes have been cosmetic or clarifying, largely due to the

regulatory environment.4 Finally, Goldman’s reliance on a conveniently-placed April 22, 2017

newspaper article, where a Goldman human resources representative appeared to tell a reporter

about certain cosmetic changes to Goldman’s performance system (by which it is also reported

that Goldman will still include an annual review), strains credulity .5 See Defs’ Mot. at 2.

4 The primary modification to Goldman’s compensation policies highlighted by Goldman declarant Michael Perloff arose in light of Federal Reserve Guidance, issued in 2010, so it is already part of the certification record. See ECF No. 260 (Expert Report of Dr. Wayne Cascio) ¶¶ 104-111 & n.87 (discussing the Federal Reserve requirements); ECF No. 296 (Expert Report of Michael P. Ward) at 32 & n.58 (discussing 2011 compensation guidelines, issued in response to Federal Reserve guidance); compare ECF No. 397 (Perloff Decl.) ¶ 12 (“Each of the Firm’s revenue generating Divisions . . . prepares Divisional Compensation Guidelines for Compensation Managers that provide detail on how the information contained in the employee summaries is to be used to ensure that discretion in compensation decisions is appropriately applied.”) with ECF No. 260 (Cascio Decl.) ¶ 50(b) (“In 2011, the divisions created written lists of metrics used to evaluate an employee’s financial performance . . . . However, the frameworks and metrics charter were not distributed to managers; they were intended for the eyes of the senior leadership.”). 5 Plaintiffs oppose Goldman’s request for judicial notice of this article. See Defs’ Mot. at 2, n.1. Judicial notice is only proper for a “fact that is not subject to reasonable dispute” because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Here, the nature, significance, and materiality of changes to Goldman’s review system clearly are in dispute, and Goldman has made no showing that the accuracy of the article and hearsay attributed to Goldman officials “cannot reasonably be questioned.” Id. Further, Goldman’s claim that discovery about changes to its review system would be burdensome undercuts its claim that the changes are amenable to judicial notice.


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III. ARGUMENT

The Court should deny Goldman’s motion because Goldman is not able to satisfy the

stringent standard for interlocutory appeal as to either issue presented. Under 28 U.S.C. §

1292(b), a district court may certify an order for interlocutory appeal if three criteria are met:

1. The order must involve a controlling question of law;

2. There must be substantial ground for a difference of opinion; and

3. The certification must materially advance the ultimate termination of the litigation.

Gulino, 234 F. Supp. at 325. Notably, a district court retains discretion to deny certification even

if all three criteria for review are demonstrated. Id.

“[O]nly ‘exceptional circumstances [will] justify a departure from the basic policy of

postponing appellate review until after the entry of a final judgment.’” Klinghoffer v. S.N.C.

Achille Lauro Ed Altri–Gestione Motonave Achille Lauro In Amministrazione Straordinaria, 921

F.2d 21, 25 (2d Cir. 1990) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978))

(second alteration in original). Interlocutory review under Section 1292(b) therefore is not

appropriate where a party is “merely attempting to obtain a second review of the decision of the

court on arguments that had already been rejected.” 3 Emp. Discrim. Coord. Analysis of Federal

Law § 141:17 (Section § 1292(b) review “should be sparingly applied in exceptional cases”).

Moreover, piecemeal review “is not intended as a vehicle to provide early review of difficult

rulings in hard cases.” Abortion Rights Mobilization, Inc. v. Regan, 552 F. Supp. 364, 366

(S.D.N.Y. 1982).

As described below, Goldman cannot and does not show that there is a substantial ground

for difference of opinion as to whether (a) former employees have standing to seek injunctive

relief under these circumstances or (b) reinstatement is an appropriate remedy for retaliation. In


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fact, these questions, especially as to reinstatement, are tied up with the facts of the case,

meaning that the “controlling question of law” criterion (the first criterion) is also not satisfied.

Finally, piecemeal and out-of-sequence review of these issues, as to only half of the Plaintiffs,

will not materially advance the litigation. It would constitute delay for its own sake.

A. The Court’s Holding that Former Employees Seeking Reinstatement Have Standing to Seek Injunctive Relief is Not Appropriate for Interlocutory Appeal.

1. There is no substantial ground for difference of opinion.6

“For there to be a substantial ground for difference of opinion . . . there must be

substantial doubt that the district court’s order was correct.” Century Pacific, Inc. v. Hilton

Hotels Corp., 574 F. Supp. 2d 369, 372 (S.D.N.Y. 2008) (citation and internal quotation marks

omitted). As this Court has already found, far from there being “substantial doubt,” id.,

Goldman’s position (as adopted by Judge Sand) was “clearly erroneous.” Order at 10.

Standing requires that the requested relief redress the alleged injury. The requirement

“focuses on whether a plaintiff personally would benefit in a tangible way from the court’s

intervention.” Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir. 2016) (internal quotation

marks omitted). Once again, Goldman claims that the Supreme Court in Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338 (2011), held that former employees can never meet this requirement

because they no longer work for the employer. Defs’ Mot. at 10-11. As this Court held,

however, Goldman goes too far. Order at 7-10. Dukes did not create an idiosyncratic “former

employee” exception to the standing doctrine, and there is no substantial ground for difference of

opinion that it did.

6 Goldman attached an Appendix to its motion listing cases that purportedly support its interpretation. For the Court’s convenience, Plaintiffs attach a response to Defendants’ citations as Appendix A.


11 1349853.2

a. Dukes did not consider whether former employees seeking reinstatement had an interest in enjoining discriminatory policies.

In Dukes, the Supreme Court held that a class could not be certified under Rule 23(b)(2)

where “the monetary relief is not incidental to the injunctive or declaratory relief.” Dukes, 564

U.S. at 360. In reaching that conclusion, the Court rejected plaintiffs’ contention that the

appropriate question was whether a claim for damages “‘predominate[d]’ over their requests for

injunctive and declaratory relief.” Id. at 363. The Court concluded a “predominance” test “ha[d]

no basis in the Rule’s text, and . . . [did] obvious violence to the Rule’s structural features,”

including “eliminat[ing] Rule 23(b)(3)’s procedural protections.” Id. at 363-64.

In dicta, the Court hypothesized that a “predominance test” for certifying 23(b)(2)

backpay claims “would also require the District Court to reevaluate the roster of class members

continually” to ensure they continued to have an interest in injunctive relief. Dukes, 564 U.S. at

364.7 The Court rejected such an approach, however, explaining the proper course was “not that

some arbitrary limitation on class membership should be imposed but that the backpay claims

should not be certified under Rule 23(b)(2) at all.” Id. at 365.

The Supreme Court did not consider whether (as here) former employees seeking

reinstatement to their positions had a “need for prospective relief” against discriminatory

policies.8 Goldman rejects the Court’s faithful application of standing principles on the mistaken

presumption that reinstatement cannot be granted here.9 Goldman is wrong.

7 The discussion was dicta because it was unnecessary to the Court’s holding. Port Wash. Teachers’ Ass’n v. Bd. of Educ. Of Port Wash. Union Free School Dist., 478 F.3d 494, 502 (2d Cir. 2007) (portions of opinion “unnecessary to [court’s] decision” may “be characterized as dicta”). 8 Goldman is wrong that this question was “expressly briefed” to the Supreme Court. Defs’ Mot. at 11-12, n.5. Respondents’ brief in Dukes refers only to the possibility that former employees “may seek employment with Wal-Mart in the future.” Mot. for Respondents at 61-64,


12 1349853.2

b. There is no disagreement among courts in this District.

The Court’s holding that Plaintiffs have standing does not create a substantial ground for

difference of opinion among the district courts in this District: every decision that Plaintiffs have

located on this issue is consistent with the Court’s reasoning. See, e.g., Kassman v. KPMG LLP,

925 F. Supp. 2d 453, 468 (S.D.N.Y. 2013) (Furman, J.) (joining other courts that have held “a

plaintiff seeking reinstatement has standing to pursue injunctive or declaratory relief”); Kubicek

v. Westchester Cnty., No. 08 Civ. 372, 2013 WL 5423961, at *8 (S.D.N.Y. Sept. 27, 2013)

(Ramos, J.) (“[W]here a plaintiff seeks reinstatement with a former employer, courts have held

that the former employee does have standing to seek prospective relief.”); Robinson v. Blank, No.

11 Civ. 2480, 2013 WL 2156040, at *12 (S.D.N.Y. May 20, 2013) (Crotty, J.) (“[W]hen a former

employee seeks reinstatement as a form of relief, that former employee will retain standing to

challenge the discriminatory policy or practice that led to his termination, assuming that the

policy or practice remains in force and would likely affect him again, should reinstatement be

awarded.”).10

Goldman claims that two courts in this District have reached conclusions at odds with

this Court and all the other District cases: Janes v. Triborough Bridge and Tunnel Auth., 889 F.

Supp. 2d 462, 466 (S.D.N.Y. 2012) (Engelmayer, J.) and Oakley v. Verizon Commc’ns Inc., 09 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), 2011 WL 686407, at *61-64 (Feb. 22, 2011) (emphasis added). It makes no argument similar to Plaintiffs’ position here. 9 Cf. Tsirelman v. Daines, 794 F.3d 310, 314 N.3 (2d Cir. 2015) (rejecting argument that doctor whose license was revoked lacked standing to challenge revocation procedures since he could not be deprived of license a second time because it “assumes an outcome in defendants’ favor and is therefore without merit,” i.e., that his license would not be restored). 10 Out-of-Circuit authority, and other authority within the Second Circuit, also support this Court’s conclusion that former employees seeking reinstatement have standing to seek injunctive relief. See Dorris v. City of McKinney, No. 4:16 Civ. 00069, 2016 WL 5811990, at *5 (E.D. Tex. Oct. 4, 2016) (former municipal employee seeking reinstatement “has standing to seek injunctive relief” against the city); see also App. B (attached hereto, listing additional cases). Even Goldman acknowledges cases in accord with this Court’s reasoning. See Defs’ Mot., App. A at A-5.


13 1349853.2

Civ. 9175, 2012 WL 335657, at *15 (S.D.N.Y. Feb. 1, 2012) (McMahon, J.). Goldman’s

characterization of these cases is inaccurate.

Janes is not an employment case at all, but rather a challenge to a bridge toll policy. The

question of whether former employees had standing to seek injunctive relief was never litigated,

or even addressed. Goldman simply quotes language that appears in a parenthetical about

Dukes, Defs’ Mot. at 12, where Judge Engelmayer was evaluating how “the contours of the class

[before him] must be drawn,” Janes, 889 F. Supp. 2d at 466, so as to avoid including people who

had since become eligible for toll discounts or who no longer had driver’s licenses in the class,

id. at 466-67. Judge Engelmayer was not evaluating the standing of an individual named

plaintiff, much less an employee seeking reinstatement, and the quoted language was not part of

the court’s holding.

Similarly, in Oakley, Judge McMahon—reviewing a motion for class certification—was

referring to an overbroad class definition which “include[d] former Verizon employees and

[sought] to enjoin policies and practices that the company discontinued several years ago.” 2012

WL 335657, at *15. Judge McMahon specifically stated that “[t]he Court has no idea whether

properly defined subclasses of current employees seeking equitable relief against policies

currently in effect would meet any of the Rule 23 requirements” because “Plaintiffs do not even

attempt to carry their burden on this issue.” Id. Judge McMahon did not evaluate whether a

former employee seeking reinstatement had standing or could be included in a Rule 23(b)(2)

class. Id.; see also Order at 9, n.2 (distinguishing Oakley).

Goldman’s citation to dicta or inapposite authority falls far short of demonstrating “a

substantial ground for difference of opinion” with this Court. Gulino, 234 F. Supp. 2d at 325.


14 1349853.2

c. There is no disagreement among Courts of Appeal.

Goldman’s attempt to manufacture a circuit split with the Ninth and Eleventh Circuits is

even less availing. This Court’s order is not in conflict with either circuit.11

Goldman claims that “[t]he Ninth Circuit has expressly held that, even when, as here,

former employees seek reinstatement, ‘only current employees have standing to seek injunctive

relief.’” Defs’ Mot. at 14 (emphasis in Defendants’ brief) (quoting Ellis v. Costco Wholesale

Corp., 657 F.3d 970, 988 (9th Cir. 2011)). The Ninth Circuit in fact follows the opposite rule.

See Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (“[A] non-

employee may have standing to sue for injunctive relief against an employer . . . [when] in the

process of seeking reinstatement to their former positions, or seeking work from that

employer.”). Ellis did not mention, let alone overrule, Walsh, which district courts in the Ninth

Circuit continue to follow.12 The Ellis court had no occasion to do so because it addressed a

11 Goldman also cites Gilbert v. Donahoe, 751 F.3d 303 (5th Cir. 2014) (retired employee not seeking reinstatement at the USPS or anywhere else) and Taylor v. Resolution Trust Co., 56 F.3d 1497, 1503 (D.C. Cir. 1995) (former employees had resigned or left employment and “[n]one of [them] has indicated that he or she plans to work again” at defendant), but acknowledges that those cases were “not considering plaintiffs seeking reinstatement.” Defs’ Mot. at 15, n. 9. These cases are inapposite and not in conflict with this Court. Moreover, even if a conflict existed (though it does not), “disagreements among courts outside of the Second Circuit [are] insufficient” to satisfy the second prong of Section 1292(b). Cromer Fin. Ltd. v. Berger, Nos. 00 Civ. 2284, 00 Civ. 2498, 2001 WL 935475, at *2 (S.D.N.Y. Aug. 16, 2001) (citing cases); see also In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., Nos. MDL 1358, et al., 2005 WL 39918, at *2 & n.15 (S.D.N.Y. Jan. 6, 2005) (“[N]either disagreement outside this Circuit, nor the presence of disputed matters of first impression demonstrate a substantial ground for a difference of opinion.” (collecting cases)). 12 See, e.g., Furtado v. United Rentals, Inc., No. 14 Civ. 04258, 2015 WL 4452502, at *7-8 (N.D. Cal. Jul. 20, 2015) (following Walsh test to conclude former employee who did not seek reinstatement lacked standing to seek injunctive relief); Hightower v. JPMorgan Chase Bank, N.A., No. 11 Civ. 1802, 2012 WL 12878311, at *3 (C.D. Cal. Sep. 12, 2012) (“As a general rule, a former employee may not maintain a claim for injunctive relief against a former employer unless there is a possibility that he will return to work with the former employer.” (citing Walsh, 471 F.3d at 1037)); Atiqi v. Acclaim Technical Servs., Inc., No. 14 Civ. 628, 2016 WL 2621946, at *6 (C.D. Cal. Feb. 11, 2016) (“As Plaintiff no longer works for Defendant, and is no longer seeking reinstatement, he does not have standing to assert a claim for injunctive relief.”) (citing


15 1349853.2

promotions challenge, and plaintiffs made no request for reinstatement.13 See Ellis, 657 F.3d at

974-75, 986. Goldman’s claim that “[i]n light of Ellis, district courts in the Ninth Circuit have

held that former employees seeking reinstatement lack standing to seek injunctive relief,” Defs’

Mot. at 14, is misleading, because the only case it cites, Kastroll v. Wynn Resorts, Ltd., No. 2:09

Civ. 2034, 2013 WL 496409, at *3 (D. Nev. Feb. 6, 2013), does not even rely on Ellis and was

not an employment discrimination case. Rather, plaintiffs brought tort claims alleging that an

employer failed to maintain a safe work environment. Id. at *1. Reinstatement was not an

available remedy, and the plaintiffs did not seek it. Id.

Goldman also cites Drayton v. W. Auto Supply Co., No. 01 Civ. 10415, 2002 WL

32508918, at *4-5 (11th Cir. Mar. 11, 2002) (unpublished), for the proposition that the threat of

harm to a former employee is too “speculative” or “hypothetical” to support injunctive relief.

Defs’ Mot. at 14-15. The court’s conclusion in Drayton, however, was narrowly confined to the

unique circumstances of the case. The alleged discrimination was perpetrated by a company that

no longer existed. See Drayton, 2002 WL 32508918, at *1. Accordingly, the employees could

not return to work for the defendant. Id. at *5. Drayton was also decided nine years before

Walsh, supra); Caselman v. Pier 1 Imports (U.S.), Inc., No. 14 Civ. 0283, 2015 WL 106063, at *3 (N.D. Cal. Jan. 7, 2015) (no standing for injunctive standing for former employee not seeking reinstatement) (citing Walsh, supra). 13 Goldman erroneously suggests that Plaintiffs in Ellis sought reinstatement, referring to language in the Second Amended Complaint seeking “[a]n order assigning Plaintiffs and the class and subclass to those jobs they would have held but for Defendant’s discriminatory practices.” Defs’ Mot. at 14, n.8 (emphasis added in Defendants’ brief). This is incorrect: the italicized language refers to promotions that were wrongfully denied, not to wrongful discharge or the other circumstances present here. See Second Am. Comp. at 8-17, Ellis v. Costco Wholesale Corp., No. 04 Civ. 3341, ECF No. 83 (N.D. Cal. Mar. 23, 2005). Further, the Ninth Circuit in Ellis was referring to how the district court on remand should define the class, not whether a particular individual employee had standing to pursue injunctive relief. Ellis, 657 F.3d at 988.


16 1349853.2

Dukes, so it does not support Goldman’s thesis that Dukes created an “unsettled and evolving”

issue of law with respect to former employee standing. Defs’ Mot. at 16.

Likewise, the handful of other out-of-Circuit district court cases that Goldman cites, see

Defs’ Mot. at 15-16, raise no unsettled or evolving areas of the law. See Roberts v. Target Corp.,

No. 11 Civ. 951, 2012 WL 2357420, at *1, *3 & n.9 (W.D. Okla. June 20, 2012) (dismissing

claim for lack of standing because “plaintiff does not contest [defendant’s argument] in her

response”);14 In re Conseco Life Ins. Co. Life Trend Ins. Marketing & Sales Practice. Litig., No.

10 Civ. 2124, 2011 WL 6372412, at *5-6 (N.D. Cal. Dec. 20, 2011) (in unrelated non-

employment case, rejecting claim that former policyholders could reinstate their policies because

“plaintiffs provide no evidence nor description as to how such [policy] reinstatements would

occur”); Hirst v. Skywest, Inc., No. 15 Civ. 02036, 2016 WL 2986978, at *14 (N.D. Ill. May 24,

2016) (holding former employees lacked standing for injunctive relief where there was no

evidence that the employees requested reinstatement); Baricuatro v. Indus Personnel & Mgmt.

Servs., Inc., No. 11 Civ. 2777, 2013 WL 6072702, at *18 & n.20 (E.D. La. Nov. 18, 2013)

(former employee did not seek reinstatement).

In contrast, the Court’s holding is consistent with decades-old appellate authority. See,

e.g., Hirst, 2016 WL 2986978, at *14 (relying on Seventh Circuit’s 28-year-old holding in Feit v.

Ward, 886 F.2d 848, 857 (7th Cir. 1989), that former employee who “in his complaint, [did] not

seek reinstatement to his former position” did not have standing to pursue injunctive relief);

Armstrong v. Turner Industries, Inc., 141 F.3d 554, 563 (5th Cir. 1998) (former employee lacked

14 Further, the plaintiffs’ prayer for relief did not include a request for reinstatement. See Amended Complaint, Roberts v. Target Corp., No. 11 Civ. 951, ECF. No. 51, at 21-22 (W.D. Okla. Feb. 17, 2012).


17 1349853.2

standing in part because “[h]e has not indicated that he plans to seek employment with

[defendant] again”).

2. Interlocutory appeal of this Court’s order will not materially advance the ultimate termination of the litigation.

Courts decline to certify interlocutory appeals where, as here, certification will not

advance the ultimate termination of the litigation. See, e.g., Gulino, 234 F. Supp. 2d at 325

(denying certification where an appeal would only resolve claims against one of several

defendants; the appeal “would not prevent a trial altogether”); Jacques v. DiMarzio, Inc., 216 F.

Supp. 2d 139, 145 (E.D.N.Y. 2002) (denying certification where appellate review could only

resolve a federal law claim, and the case would still proceed for a state law claim); German v.

Fed. Home Loan Mortg. Corp., 896 F. Supp. 1385, 1398 (S.D.N.Y. 1995) (denying certification

where interlocutory appeal could “reduce the discovery [defendants] would be required to

produce, [but] it would not end the litigation as to either of them, nor would it substantially

reduce the unresolved issues in this case, as there are numerous claims and other defendants who

would be unaffected”).

Even if the Second Circuit reversed the Court, this would not resolve class certification,

let alone terminate the litigation. An examination of the ongoing disparate impact of Goldman’s

policies will be necessary regardless of whether there is a (b)(2) injunctive relief certified class,

and notwithstanding Goldman’s wholly unverified assertions that it has stopped discriminating,

for the reasons set forth below.

a. The substantive law of Title VII permits monetary remedies where there is disparate impact and this relief will be addressed through a (b)(3) class.

Goldman’s implicit premise that its current practices are somehow off-the-table if there is

a class trial for disparate impact (so long as it is only a trial under (b)(3)) is entirely without basis


18 1349853.2

and contrary to law. Even if (b)(2) did not exist, this Court will still address whether Plaintiffs’

motion for class certification should be granted pursuant to Rule 23(b)(3). In turn, under

23(b)(3), the Court will determine if predominance, among other elements, is satisfied on the

common question of whether Goldman engages in practices causing disparate impact against

class members. If predominance is satisfied on disparate impact, this triggers, at the very

minimum, an entitlement to the monetary remedy of backpay. A (b)(3) class, with opt-out rights

(and not a (b)(2) class), is the vehicle to structure the provision of backpay under Dukes.

In other words, Goldman is attempting to use a procedural rule (class certification) to

abridge substantive rights under Title VII. Under Goldman’s approach, the temporal scope of

the substantive monetary relief (which is set forth in the substantive law of Title VII and state

law) would be different if the class procedural vehicle were (b)(2) rather than (b)(3) or a hybrid

(b)(2)/(b)(3)/(c)(4) class. This is meritless. See Parisi v. Goldman, Sachs & Co., 710 F.3d 483,

488 (2d Cir. 2013) (“[T]he right of a litigant to employ Rule 23 is a procedural right only,

ancillary to the litigation of substantive claims.”).

b. A Rule 23(b)(2) Class is appropriate even if Goldman tweaked or stopped its challenged practices.

As described above in Section II (Background), Goldman’s claim that its policies have

“radically” changed (Defs’ Mot. at 9) is completely contradicted by the record.15 Further, to the

extent that Goldman asserts that a (b)(2) class cannot be certified in the face of a change in

practice, this argument is unavailing. Courts routinely certify injunctive relief classes even when

defendants assert that they have changed their challenged practices. See Easterling v. Conn.,

Dep’t of Corr., 265 F.R.D. 45, 54 (D. Conn. 2010), modified, 278 F.R.D. 41 (D. Conn. 2011) 15 Even on the face of Goldman’s assertions, Goldman’s purported changes are minor. They do not appear to affect Plaintiffs’ core criticisms, including Goldman’s unvalidated, secret forced ranking process and a 360-degree review process that is unvalidated as implemented. They are also unaccompanied by any restitution for past discrimination.


19 1349853.2

(“Where a defendant takes steps to remedy potentially unlawful behavior following the filing of

a lawsuit, courts have been willing to grant certification under 23(b)(2) because the fact that the

defendant changed its behavior only in the face of a lawsuit indicates that the defendant’s

commitment to its changed practice is questionable.”); Etuk v. Blackman, 748 F. Supp. 990, 993-

95 (E.D.N.Y. 1990), aff’d in part, vacated in part sub nom. Etuk v. Slattery, 936 F.2d 1433 (2d

Cir. 1991) (certifying (b)(2) class despite defendant’s memorandum clarifying and modifying its

challenged practice); see generally Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.

167, 189 (2000) (“[i]t is well settled that a defendant’s voluntary cessation of a challenged

practice does not deprive a federal court of its power to determine the legality of the practice.”)

(internal quotation omitted).16

c. Discovery regarding Goldman’s practices will be updated before trial no matter which prong of Rule 23 is implicated.

Goldman also ignores that post-certification discovery, including updating evidence

about the data and practices before trial, is routine in employment class actions. As summarized

by Judge Francis when rejecting Goldman’s claims about the burdens of additional discovery

relating to injunctive relief, “this case has always involved a potential class for whom damages

are sought up to the present date, so that the incentive to establish a complete and accurate record

has not changed.” Chen-Oster v. Goldman, Sachs & Co., 2015 WL 4619663, at *9 (S.D.N.Y.

16 Moreover, a Rule 23(b)(2) class for declaratory relief can be certified independent of certification for injunctive relief. See ECF No. 247 (plaintiffs’ motion for class certification) at 44-45 (noting that Rule 23(b)(2) makes “injunctive or declaratory relief” appropriate and seeking “order that both enjoins the discriminatory practices and mandates that the practices reflect job-related, non-discriminatory measures”); see also ECF No. 411 (Second Amended Class Action Complaint) ¶ 61 (“seeking liability-phase injunctive and declaratory relief on behalf of a Class”). Declaratory relief certification is consistent with a (b)(3) certification for monetary remedies for the legal violations. See Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir. 2001) (“The [Rule](b)(2) class action is intended for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury.” (emphasis supplied)), abrogated on other grounds by Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).


20 1349853.2

Aug. 3, 2015). Class-wide merits discovery will continue after class certification regardless of

whether the certified class is a (b)(3) class, a (b)(2) class, or a combination.

d. An interlocutory appeal would splinter and slow the class certification proceedings, thus slowing the termination of this litigation.

As described above, the issues that Goldman mistakenly argues can be terminated on

appeal are in fact live and on-going.17 This alone is sufficient to deny the motion. In addition,

however, there is no need for piecemeal review of the record here. The recommendation on Rule

23(b)(3) certification is ready for review and is being briefed in this Court at this time.

Presumably, the losing party on (b)(3) certification will request review of that decision by the

Second Circuit pursuant to Rule 23(f). Likewise, after the parties brief Rule 23(b)(2)

certification, the losing party will no doubt seek an appeal. Accordingly, it would be far more

efficient for this Court to resolve the pending class certification motion first, with respect to both

(b)(2) and (b)(3), and then for the Second Circuit to decide whether it wants to review any of the

related issues in a subsequent, consolidated appeal. This factor weighs heavily against

certification of the requested interlocutory appeal at this time, because such appeal would slow

the (b)(2) briefing, and raises the specter of splintered appeals. See Youngers v. Virtus Inv.

Partners Inc., No. 15 Civ. 8262, 2017 WL 65327, at *5 (S.D.N.Y. Jan. 6, 2017) (“[T]he

institutional efficiency of the federal court system is among the chief concerns underlying §

1292(b).”) (internal quotation omitted). Goldman’s appeal request should be rejected.

17 It appears that some of this arises from Goldman’s misapprehension of how the substantive law of Title VII interacts with the procedural tools within Rule 23.


21 1349853.2

B. The Court’s Holding That Reinstatement Is a Remedy Available to Plaintiffs Is Not Appropriate for Interlocutory Appeal.

1. There is no substantial ground for difference of opinion.

There are no grounds for a difference of opinion over the applicable requirements for

reinstatement in the Second Circuit, let alone substantial grounds. Contrary to Goldman’s

argument, reinstatement is not limited to instances where the plaintiff was unlawfully or

constructively discharged. Rather, “courts in this circuit have granted reinstatement in a variety

of other circumstances.” Order at 13-14 (collecting cases where courts have granted

reinstatement for retaliation and a variety of other discriminatory employment practices, such as

demotion and transfer to a less desirable position). As recognized in the Court’s Order, the

Second Circuit has held that a plaintiff may seek reinstatement for retaliation when her

“retaliation claim was not limited to h[er] discharge” if she pleads “adverse actions throughout

h[er] employment[.]” Order at 14 (citing Muller v. Costello, 187 F.3d 298, 315 (2d Cir. 1999)).18

Goldman argues that interlocutory appeal should be permitted on this issue based on an

unpublished 1987 case, McPartland v. American Broadcasting Companies, Inc., No. 83 Civ.

471, 1987 WL 14907, at *1 (S.D.N.Y. July 21, 1987). Defs’ Mot. at 20. This case cited “only

out-of-district case law” and “does not appear to have ever been cited by any court since being

issued nearly thirty years ago.” Order at 14 & n.3. The Court rejected Goldman’s argument

based on McPartland and found that the case “clearly can no longer be considered good law” in

light of the Second Circuit’s holding in Muller. Order at 14.

Goldman’s other authority, Defs’ Mot. at 21, is similarly unpersuasive. In arguing that

unlawful discharge is a necessary predicate to seeking reinstatement, Goldman misconstrues

Title VII. See Defs’ Mot. at 20. Consistent with the Court’s holding, Title VII authorizes 18 The Court also cited additional authority from the Second Circuit and courts in this District. See Order at 14.


22 1349853.2

reinstatement as a remedy for any unlawful employment practice and does not make that remedy

contingent on discharge. 42 U.S.C. § 2000e5(g)(1) (“If the court finds that the respondent has

intentionally engaged in . . . an unlawful employment practice . . . , the court may . . . order such

affirmative action as may be appropriate, which may include, but is not limited to, reinstatement

or hiring of employees . . . or any other equitable relief as the court deems appropriate (emphases

supplied)).

Section 2000e-5(g)(2)(A), cited by Goldman, stands for the unremarkable proposition

that a plaintiff is not entitled to any remedy under Title VII if she did not suffer discrimination.

Goldman selectively singles out the word “discharge” as the triggering event for remedies under

Title VII (including reinstatement), but the full citation is much broader. It applies “if such

individual was refused admission, suspended, or expelled, or was refused employment or

advancement or was suspended or discharged for any reason other than discrimination[.]” Id.

Goldman also cites out-of-Circuit cases, but such authority does not suffice to satisfy the

second prong of Section 1292(b). See supra n.10. Moreover, Goldman cited these same cases

when it sought to dismiss Plaintiff De Luis, see ECF No. 463 at 9 & n.10, and the Court rejected

them then as well, explaining that it “cannot identify any such requirement” that plaintiffs must

allege “unlawful discharge . . . to be eligible for reinstatement.”19 Order at 13.

19 The cases cited by Goldman are otherwise inapposite. The holdings of two of the cases analyzed entitlement to backpay and not reinstatement. See EEOC v. L.B. Foster Co., 123 F.3d 746, 755 (3d Cir. 1997); Hertzberg v. SRAM Corp. 261 F.3d 651, 660 (7th Cir. 2001) (“The requirement that a plaintiff establish a discriminatory discharge in order to receive lost pay precludes such a recovery for Ms. Hertzberg in the present case.” (emphasis added)). A third was not a Title VII case. See Taylor v. F.D.I.C., 132 F.3d 753, 762-53 (D.C. Cir. 1997) (suing for violation of Resolution Trust Corporation Whistleblower Act and First Amendment). To the extent Maney v. Brinkley Municipal Waterworks and Sewer Department (Arkansas), 802 F.2d 1073 (8th Cir. 1986) and Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir. 1986) are contrary, two non-Second Circuit opinions from over 30 years ago do not present substantial grounds for disagreement. See Gulino, supra.


23 1349853.2

2. This issue does not present a “controlling question of law.”

To the extent Goldman argues that the Plaintiffs “have not pleaded a cause of action that

would entitle them to reinstatement,” Defs’ Mot. at 20, and that none of them “allege[] unlawful

or constructive discharge,” id. at 18, its argument boils down to a disagreement on a question of

fact, not law, which is not appropriate for Section 1292(b) review. See Morris v. Flaig, 511 F.

Supp. 2d 282, 315 (E.D.N.Y. 2007) (dispute over the “application of the law to the facts . . .

do[es] not present issues of pure law and therefore [is] not appropriate for interlocutory review”)

(internal quotations omitted); see also In re Facebook, Inc., IPO Sec. & Derivative Litig., 986 F.

Supp. 2d 524, 536 (S.D.N.Y. 2014) (“The antithesis of a proper Section 1292(b) appeal is one

that turns on whether there is a genuine issue of fact or whether the district court properly

applied settled law to the facts or evidence of a particular case.”); Decora, Inc. v. DW

Wallcovering, Inc., 901 F. Supp. 161, 165 (S.D.N.Y. 1995) (questions not appropriate for

Section 1292(b) certification when they “involve the application of well-settled principles of law

to the facts of this case”); In re Worldcom, Inc., No. M-47 HB, 2003 WL 21498904, at *10

(S.D.N.Y. June 30, 2003) (“controlling question of law” must be a “‘pure question of law,” one

“that the reviewing court ‘could decide quickly and cleanly without having to study the record’”

(quoting Ahrenholz v. Bd. of Trustees, 219 F.3d 674, 676-77 (7th Cir. 2000))).

Moreover, Goldman is wrong as to both of its factual contentions. Here, each of the

Plaintiffs has pled sufficient facts to support claims of retaliation and unlawful or constructive

discharge.20 See supra Section II.A; see also Order at 15 (“De Luis plausibly pleaded unlawful

discrimination sufficient to support a request for reinstatement.”); id. at 21 (rejecting argument

that Ms. Gamba cannot request reinstatement because Goldman sold her division).

20 Moreover, at the pleading stage “all inferences” must be drawn in Plaintiffs’ favor. Order at 18.


24 1349853.2

3. Interlocutory appeal will not materially advance the litigation.

Even under Goldman’s incorrect statement of the law, the Plaintiffs unmistakably

pleaded unlawful or constructive discharge, making reinstatement an available remedy under

Title VII. See supra Section II.A. Thus, they are viable representative Plaintiffs for a Rule

23(b)(2) injunctive relief class even in the unlikely event that the Second Circuit uses this

interlocutory appeal to change the law by narrowing the circumstances under which a plaintiff

may be entitled to reinstatement.

Likewise, if Goldman is correct in its interpretation of Title VII (and it is not), Plaintiffs

also each alleged that Goldman’s practices violated the New York City Human Rights Law

(“NYCHRL”) and sought class certification of those claims. See ECF No. 247 at 1 (seeking

certification of claims for “systemic disparate impact and disparate treatment against women in

violation of . . . the [NYCHRL], Administrative Code of the City of New York § 8-107 et seq.”);

see also Id. at 42 (“Pursuant to Fed. R. Civ. P. 23(b)(2) or (c)(4), the Court may certify Title VII

and NYCHRL claims seeking injunctive relief for Goldman’s challenged compensation,

promotion, and performance evaluation procedures.”). Under the NYCHRL, the Court has broad

authority to order reinstatement as a remedy even absent constructive or unlawful discharge. See

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (the

NYCHRL must “be construed liberally for the accomplishment of the uniquely broad and

remedial purposes thereof, regardless of whether federal or New York State civil and human

rights laws, including those laws with provisions comparably-worded to provisions of this title[,]

have been so construed.”) (quoting N.Y.C. Local L. No. 85 § 7 (amending N.Y.C. Admin. Code

§ 8-130)); see also Sass v. MTA Bus Co., 6 F. Supp. 3d 238, 252 n.5 (E.D.N.Y. 2014) (“the

NYCHRL empowers the Commission on Human Rights . . . to order the ‘hiring, reinstatement or

upgrading of employees’ upon finding that a respondent has engaged in an unlawful


25 1349853.2

discriminatory practice”) (citing N.Y.C. Admin. Code § 8-120); New York City Transit Auth. v.

State Div. of Human Rights, 78 N.Y.2d 207, 217, 573 N.Y.S.2d 49 (1991) (N.Y.C. Admin. Code

§ 8-120 grants the Commission broad power to fashion the appropriate relief to remedy

discriminatory conduct; “the relief . . . need only be reasonably related to the discriminatory

conduct”) (citations omitted); N.Y.C. Admin. Code § 8-502 (under the NYCHRL, individuals

have a cause of action “for damages, including punitive damages, and for injunctive relief and

such other remedies as may be appropriate”).

Finally, even if Goldman were to prevail on its arguments, it will not impact the litigation

since Plaintiffs have other viable claims providing alternative bases for a class determination in

their favor. See Youngers v. Virtus Inv. Partners Inc., No. 15 Civ. 8262, 2017 WL 65327, at *2

(S.D.N.Y. Jan. 6, 2017) (interlocutory appeal is inappropriate “[w]here there is ‘at least one

alternative basis’” for a district court’s ruling). As to Goldman’s request for clarity that

reinstatement is limited to discharge, even in the unlikely event that the Second Circuit would

want to weigh-in, mid-case, on the mixed question of whether Ms. Gamba was in fact

discharged, there remains another plaintiff, Ms. Orlich, who was indisputably terminated. Thus,

neither a ruling limiting the circumstances under which retaliation can be pleaded, nor a ruling

on the merits that Ms. Gamba was not terminated, would advance the litigation.

IV. CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that Goldman’s motion be

denied.


26 1349853.2

Dated: May 19, 2017 Respectfully submitted, LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

By: /s/ Kelly M. Dermody Kelly M. Dermody Kelly M. Dermody (admitted pro hac vice) Anne B. Shaver (admitted pro hac vice) Tiseme G. Zegeye 275 Battery Street, 29th Floor San Francisco, California 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Rachel Geman 250 Hudson St., 8th Floor New York, New York 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592

Dated: May 19, 2017 OUTTEN & GOLDEN LLP

By: /s/ Adam T. Klein Adam T. Klein Adam T. Klein Cara E. Greene 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (646) 509-2060

OUTTEN & GOLDEN LLP Paul W. Mollica 161 North Clark Street, Suite 4700 Chicago, Illinois 60601 Telephone: (312) 809-7010 Facsimile: (312) 809-7011

Attorneys for Plaintiffs and the Putative Class


27 1349853.2


APPENDIX A


A-1

APPENDIX A:

Plaintiffs’ Response to Defendants’ Appendix A (“Case Law Discussing Former Employees’ Standing to Seek Injunctive Relief”)

1. Defendants characterize the following cases as “stating that former employees lack standing to pursue injunctive relief.” Dkt. 485, Appendix A at A-1. Plaintiffs have added a third column to Defendants’ table responding to each case. Plaintiffs have also re-organized the cases in alphabetical order for the Court’s convenience.

Case Defendants’ Discussion Plaintiffs’ Response

Apodaca v. Costco Wholesale Corp., 2012 WL 12336225 (C.D. Cal. Oct. 29, 2012), aff’d, 2017 WL 83488 (9th Cir. Jan. 10, 2017)

“Costco argues that Apodaca lacks standing to seek injunctive relief because she is a former employee. The Court agrees.” Id. at *4.

This case did not involve a request for reinstatement.

Balasanyan v. Nordstrom, Inc., 294 F.R.D. 550 (S.D. Cal. 2013)

“[F]ormer employees[] cannot establish a sufficient likelihood that they will again be wronged by Nordstrom’s allegedly improper conduct. . . . As a result, the Maraventano Plaintiffs have no standing to pursue injunctive relief.” Id. at 562.


Baricuatro v. Indus. Personnel & Mgmt. Servs., Inc., 2013 WL 6072702 (E.D. La. Nov. 18, 2013)

Because the named plaintiff “has no realistic threat of future injury[,] . . . he lacks standing to bring a claim for injunctive relief and cannot fairly represent a class based upon such a claim.” Id. at *18 & n.20.

The employee was not seeking reinstatement. See Plfs’ Opp. at 16.


A-2


Beal v. Lifetouch, Inc., 2012 WL 3705171 (C.D. Cal. Aug. 27, 2012)

Denying Rule 23(b)(3) class certification because named plaintiff, “as a former employee[,] . . . does not have standing to seek injunctive relief.” Id. at *3 (internal quotation marks omitted).


Brackin v. Anson, 2014 WL 555315 (M.D. Ala. Feb. 12, 2014), aff’d, 585 F. App’x 991 (11th Cir. 2014)

“The court must agree with Defendants that Plaintiffs [former employees] lack standing to sue for prospective injunctive relief.” Id. at *4.


Byrd v. Masonite Corp., 2016 WL 6818352 (C.D. Cal. July 7, 2016)

“As a former employee of Defendant, Plaintiff lacks standing to sue for injunctive relief. . . . Former employees lack standing to bring a claim for injunctive relief against their employers because such employees do not stand to benefit from the injunction.” Id. at *4.

This case did not involve a request for reinstatement, and also cites Walsh v. Nevada Dept of Human Resources, 471 F.3d 1033, 1036, 1037 (9th Cir. 2006), which confirms that standing to seek injunctive relief depends on whether an employee seeks reinstatement.


A-3


Cleveland v. Groceryworks.com, LLC, 200 F. Supp. 3d 924 (N.D. Cal. 2016)

Former employee “has not identified any evidence that he faces a real and immediate threat of repeated injury” from employer’s practices and “therefore lacks standing to pursue prospective injunctive relief.” Id. at 961 (internal quotation marks omitted).


De La Cueva v. Alta Dena Certified Dairy, LLC, 2013 WL 12129947 (C.D. Cal. May 9, 2013)

“Plaintiff, as a former employee, lacks standing to seek injunctive relief.” Id. at *2.


Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011)

Even when former employees seek reinstatement, “only current employees have standing to seek injunctive relief.” Id. at 988.

The court did not consider a plaintiff seeking reinstatement. See Plfs’ Opp. at 14-15.

Gilbert v. Donahoe, 751 F.3d 303 (5th Cir. 2014)

Plaintiff’s “retirement did destroy her standing to bring claims for injunctive relief . . . . As [Plaintiff] is no longer an employee of USPS, she does not realistically face a threat that [Defendant’s] employees will continue to violate her rights under the FMLA.” Id. at 313.

Goldman acknowledges that this case was “not considering plaintiffs seeking reinstatement.” Defs’ Mtn. at 15, n. 9.


A-4


Gonzales v. Comcast Corp., 2012 WL 10621 (E.D. Cal. Jan. 3, 2012), adopted by 2012 WL 217708 (E.D. Cal. Jan. 23, 2012)

“The Court is not persuaded by Plaintiffs’ arguments that former Comcast customers may someday become Comcast customers again, and eventually need relief from Comcast’s current practices. Such an attenuated interest in the requested injunctive relief is entirely too speculative to confer any legitimate interest in injunctive relief.” Id. at *16 (emphasis in original).

This case is an inapposite consumer protection case, not an employment case. It does not discuss whether a former employee seeking reinstatement has standing for injunctive relief.

Helm v. Alderwoods Grp., Inc., 2011 WL 5573837 (N.D. Cal. Nov. 15, 2011)

“A former employee does not have standing to seek injunctive relief for any of the violations of his former employer because he cannot demonstrate a real or immediate threat of irreparable injury from the employment practices of his former employer.” Id. at *5 (internal quotation marks omitted).



A-5


Hirst v. Skywest, Inc., 2016 WL 2986978 (N.D. Ill. May 24, 2016)

“It is clear that, as former employees, the plaintiffs lack standing to pursue equitable relief. . . . [C]ourts in this district regularly dismiss putative class actions on standing grounds where the named plaintiffs were former employees seeking to obtain injunctive and equitable relief on behalf of current employees.” Id. at *14.

The plaintiff did not present a claim for reinstatement. See Plfs’ Opp. at 16.

In re Conseco Life Ins. Co. Life Trend Ins. Marketing & Sales Prac. Litig., 2011 WL 6372412 (N.D. Cal. Dec. 20, 2011)

Decertifying Rule 23(b)(2) class “with respect to the former policyholders” after Wal-Mart, and finding “plaintiff’s claim that some former policyholders still have standing because they may be entitled to reinstatement unpersuasive” because “such reinstatements would seemingly require the type of individualized inquiries prohibited by [Wal-Mart].” Id. at *5-6.

This was not an employment case and plaintiffs “provide[d] no evidence nor description as to how [policy] reinstatements would occur.” Id. at *5-6. See Plfs’ Opp. at 16.

Ingalls v. U.S. Space & Rocket Ctr., 2015 WL 4528687 (M.D. Ala. July 27, 2015), aff’d 2017 WL 629258 (11th Cir. Feb. 16, 2017)

Plaintiffs, as former employees, “lack standing to sue for prospective injunctive relief.” Id. at *7.



A-6


Janes v. Triborough Bridge & Tunnel Auth., 889 F. Supp. 2d 462 (S.D.N.Y. 2012) (Engelmayer, J.)

“[F]ormer employees of a store do not have standing to seek injunctive relief against their former employer, and therefore cannot serve as part of a class certified to seek forward looking injunctive relief.” Id. at 466 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 364–65 (2011)).

The court was not considering whether a former employee has standing to seek injunctive relief. See Plfs’ Opp. at 12-13.

Kastroll v. Wynn Resorts, Ltd., 2013 WL 496409 (D. Nev. Feb. 6, 2013)

Former employees’ “interest in possible reinstatement . . . is insufficient to establish that the former employees have shown a very significant possibility of future harm, and therefore the requisite injury in fact to support standing” to seek injunctive relief. Id. at *3 (internal quotation marks omitted).

Kastroll was not an employment discrimination case. Plaintiffs brought tort claims alleging an employer failed to maintain a safe work environment. Reinstatement was neither requested nor available. See Plfs’ Opp. at 15.

McKenzie v. Fed. Exp. Corp., 275 F.R.D. 290 (C.D. Cal. 2011)

“In the case at hand, McKenzie and the other putative class members who were no longer employees of FedEx at the time the complaint was filed in this case on February 19, 2010, do not have standing to sue for injunctive relief.” Id. at 298.

This case did not involve a request for reinstatement. It also cites Walsh, 471 F.3d at 1036-37.


A-7


Moheb v. Nutramax Labs. Inc., 2012 WL 6951904 (C.D. Cal. Sept. 4, 2012)

The court denied Rule 23(b)(2) class certification because former customers would “obtain no benefit from an injunction concerning Defendant’s advertising because they cannot demonstrate a probability of future injury.” Id. at *6.


Nelson v. Dollar Tree Stores, Inc., 2011 WL 3568498 (E.D. Cal. Aug. 15, 2011)

“Plaintiff’s request for injunctive relief is not available to him as a matter of law. Former employees lack standing to seek injunctive relief because they would not stand to benefit from an injunction . . . at [their] former place of work.” Id. at *5 (internal quotation marks omitted).

This case did not involve a request for reinstatement, and also cites Walsh, 471 F.3d at 1036-37.

Oakley v. Verizon Comm’ns Inc., 2012 WL 335657 (S.D.N.Y. Feb. 1, 2012) (McMahon, J.)

Former employees, including those seeking reinstatement, “lack standing to obtain injunctive relief because they are no longer affected by the challenged policies, and an injunction would do nothing to remedy their past injuries.” Id. at *15.

The court did not consider a former employee seeking reinstatement. See Plfs’ Opp. at 12-13.


A-8


Parra v. Bashas’, Inc., 291 F.R.D. 360 (D. Ariz. 2013)

“[P]laintiff Estrada, as a former Food City employee, lacks standing to sue for injunctive relief against his former employer.” Id. at 399.

This case did not involve a request for reinstatement, and, in fact, the district court cited Walsh v. Nevada Dept of Human Resources, 471 F.3d 1033, 1036, 1037 (9th Cir. 2006) as standing for the proposition, in the district court’s words, that “former employee, who gave no indication in the complaint that she was interested in returning to work for her employer, did not have standing to request injunctive relief.” Parra, 291 F.R.D. at 399 (emphasis added).

Roberts v. Target Corp., 2012 WL 2357420 (W.D. Okla. June 20, 2012)

“[F]ormer employees [seeking reinstatement] do not have standing to seek prospective injunctive relief” in putative class action alleging, among other things, unlawful discharge. Id. at *1, *3 & n.9 (citing Wal-Mart, 564 U.S. at 364–65).

The plaintiff did not offer argument on standing, id., and the complaint did not include a request for reinstatement in the prayer for relief. See Plfs’ Opp. at 16 & 16, n.14.


A-9


Rouse v. Caruso, 2013 WL 588916 (E.D. Mich. Jan. 7, 2013), adopted by 2013 WL 569638 (E.D. Mich. Feb. 13, 2013)

The court denied certification of Rule 23(b)(2) class, in part, because “plaintiffs’ proposed class and subclasses include both current and former inmates . . . rendering injunctive relief wholly inapplicable to a substantial portion of the class; indeed, none of the named plaintiffs remaining in the case could benefit from injunctive relief, as they are all no longer incarcerated.” Id. at *6.

This is not an employment case, but rather a challenge to prison conditions. It did not consider whether former employees seeking reinstatement had standing to seek injunctive relief.

Schulken v. Wash. Mut. Bank, 2012 WL 28099 (N.D. Cal. Jan. 5, 2012)

“Plaintiffs’ class certification motion for injunctive and declaratory relief fails because . . . [t]he Schulkens no longer have a HELOC with Chase. Therefore, the Schulkens are unlikely to benefit from much of the injunctive and declaratory relief sought. . . . The likelihood that the Schulkens will obtain another Chase HELOC is highly speculative at best,” since they testified that “several conditions would have to be met before they would even consider returning as Chase HELOC customers.” Id. at *5 & n.3.



A-10


Silveira v. Beard, 2013 WL 2458393 (E.D. Cal. June 6, 2013)

“Courts have recognized that former employees often do not have standing to obtain injunctive relief against their former employers because there is little chance of future injury and little chance of enjoying the benefits of the prospective relief.” Id. at *6.

This case did not involve a request for reinstatement. The plaintiff discussed in the quoted provision had retired. The court also cited Walsh, 471 F.3d at 1036-37.

Titus v. McLane Foodservice, Inc., 2016 WL 4797497 (E.D. Cal. Sept. 14, 2016)

“Plaintiff, a former employee, would lack standing to seek injunctive relief.” Id. at *6.


Tschudy v. J.C. Penney Corp., Inc., 2015 WL 8484530 (S.D. Cal. Dec. 9, 2015)

“Named Plaintiffs, as former employees, do not possess standing to seek injunctive relief on behalf of current JCP employees.” Id. at *3.


Twegbe v. Pharmaca Integrative Pharmacy, Inc., 2013 WL 3802807 (N.D. Cal. July 17, 2013)

“Plaintiffs are all former employees of Pharmaca, and so they lack standing to pursue injunctive relief on behalf of current and future employees.” Id. at *4.



A-11

2. Defendants identify the following cases as “stating that former employees seeking reinstatement may have standing to pursue injunctive relief.” Dkt. 485, Appendix A at A-5. Plaintiffs agree.


Dorris v. City of McKinney, 2016 WL 5811990 (E.D. Tex. Oct. 4, 2016)

Former municipal employee seeking reinstatement and an injunction “has standing to seek injunctive relief” against the city. Id. at *5.

This case supports Plaintiffs’ position.

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) Former employee “lacks standing to pursue his equitable claims” in part because he “does not seek reinstatement to his former position.” Id. at 857.

This case supports Plaintiffs’ position. Plaintiffs seek reinstatement.

Kassman v. KPMG LLP, 925 F. Supp. 2d 453 (S.D.N.Y. 2013) (Furman, J.)

“[A] plaintiff seeking reinstatement has standing to pursue injunctive or declaratory relief.” Id. at 468.


Kubicek v. Westchester Cnty., 2013 WL 5423961 (S.D.N.Y. Sept. 27, 2013) (Ramos, J.)

“[W]here a plaintiff seeks reinstatement with a former employee, courts have held that the former employee does have standing to seek prospective relief.” Id. at *8.



A-12


Robinson v. Blank, 2013 WL 2156040 (S.D.N.Y. May 20, 2013) (Crotty, J.)

“[W]hen a former employee seeks reinstatement as a form of relief, that former employee will retain standing to challenge the discriminatory policy or practice that led to his termination, assuming that the policy or practice remains in force and would likely affect him again, should reinstatement be awarded.” Id. at *12.



APPENDIX B


B-1

APPENDIX B

Case Law Recognizing Former Employees May Have Standing

1. Cases where former employee found to have standing because he or she was seeking reinstatement.

Case Discussion

Dorris v. City of McKinney, 2016 WL 5811990 (E.D. Tex. Oct. 4, 2016)

The court held a former municipal employee seeking reinstatement “has standing to seek injunctive relief” against the city. Id. at *5.

Infantino v. Martam Const., Inc., 2005 WL 782702, at *4 (N.D. Ill. Apr. 5, 2005)

“At this stage in the litigation, Plaintiffs have stated the operative facts that support their claim for relief, and it is possible that Plaintiffs could be reinstated and subjected to the same treatment they alleged in their complaint. Therefore, Plaintiffs have standing to seek injunctive relief” to stop discriminatory employment practice. Id. at *4.

Kassman v. KPMG LLP, 925 F. Supp. 2d 453 (S.D.N.Y. 2013) (Furman, J.)

“[A] plaintiff seeking reinstatement has standing to pursue injunctive or declaratory relief.” Id. at 468.

Labriola v. Bank of Am., No. C 12-79 CW, 2012 WL 1657191 (N.D. Cal. May 10, 2012)

The court held that a former employee had standing to seek injunctive relief against his former employer because there was a prospect that he could return to work with that employer. Id. at *7.

Levin v. Madigan, 697 F.Supp.2d 958, 975 (N.D. Ill. 2010)

“To the extent that Plaintiff seeks an injunction requiring Defendants to cease engaging in sex or age discrimination, such relief would remedy a harm that Plaintiff is likely to suffer again.” Id. at 975.


B-2

Case Discussion

Mitchel v. City of Santa Rosa, 695 F.Supp.2d 1001, 1010 (N.D. Cal. 2010)

“Defendant is correct that, ordinarily, a former employee lacks standing to pursue injunctive relief against his employer. However, the Ninth Circuit has expressly carved out an exception to this rule in the case of former employees who are ‘in the process of seeking reinstatement to their former positions.’ Here, plaintiff seeks reinstatement. Therefore, the Court finds that plaintiff does not lack standing to pursue injunctive relief and DENIES the motion to dismiss plaintiff's Ninth Cause of Action.” Id. at 1010 (citations omitted).

Mohsin v. California Dep’t of Water Resources, 2015 WL 7282904, at *5 (E.D. Cal. Nov. 18, 2015)

The court held a former employee had standing under Walsh because “Plaintiff now requests the position of Engineer Water Resource as part of his prospective injunctive relief.” 2015 WL 7282904, at *5.

Robinson v. Blank, 2013 WL 2156040 (S.D.N.Y. May 20, 2013) (Crotty, J.)

“[W]hen a former employee seeks reinstatement as a form of relief, that former employee will retain standing to challenge the discriminatory policy or practice that led to his termination, assuming that the policy or practice remains in force and would likely affect him again, should reinstatement be awarded.” Id. at *12.

-


B-3

2. Cases where a former employee was found not to have standing, but the court recognized that a request for reinstatement would have conferred standing.

Case Discussion

Achal v. Gate Gourmet, Inc., 141 F.Supp.3d 781, 819 (N.D. Cal. 2015)

The court recognized that “the Ninth Circuit has held that a former employee lacks standing to seek injunctive relief on an employment discrimination claim-at least where he or she is not seeking reinstatement” and holding that former employee did not have standing because “he alleges no facts indicating that he intends to return to work for [defendant] in the future.” Id. at 818.

Armstrong v. Turner Industries, Inc., 141 F.3d 554, 563 (5th Cir. 1998)

The court held a former employee lacked standing for injunctive relief because “[h]e has not indicated that he plans to seek employment with [Defendant] again, nor does he purport to represent a specific class of individuals that is in danger of discrimination from [Defendant].” Id. at 563.

Caselman v. Pier 1 Imports (U.S.), Inc., 2015 WL 106063, at *3 (N.D. Cal. Jan. 7, 2015)

The court held that a former employee’s claim for injunctive relief was moot because “[t]here is no indication . . . that [Plaintiff] has any interest in returning to work for [Defendant].” Id. at *3 (citation and quotation omitted).

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) The court held a former employee “lacks standing to pursue his equitable claims” in part because he “does not seek reinstatement to his former position.” Id. at 857.


B-4

Case Discussion

Furtado v. United Rentals Inc., 2015 WL 4452502, at *8 (N.D. Cal. Jul. 20, 2015)

The court held a former employee did not have standing for injunctive relief where the complaint was “void of any indication that the former employee is seeking reinstatement.” Id. at *8.

Gilster v. Primebank, 884 F.Supp.2d 811, 865-866 (N.D. Iowa 2012), reversed on other grounds, 747 F.3d 1007 (8th Cir. 2014)

The court recounted that while plaintiff “certainly had standing to request injunctive relief [at the time of her second amended complaint] prohibiting discrimination at [defendant] and requiring training and policy implementation, as there was a possibility, at that time, that, if she succeeded on the merits of her claims, she would be reinstated with [defendant],” subsequent developments in the case made “clear that she will not be reinstated, and there is no indication in the record that she otherwise will work for [defendant] again.” Id. at 865. Thus, her claim for injunctive relief subsequently became moot.

Gordon v. JKP Enterprises Inc., 35 Fed.Appx. 386, 2002 WL 753496 (5th Cir. 2002)

The court held that injunctive relief was not warranted because plaintiffs “are no longer employed with [Defendant], do not seek reinstatement, have not indicated that they plan to seek employment with [Defendant] in the future, and have shown no other way in which they would benefit from the injunction.” Id. at *7.

Helmert v. Butterball, LLC, 2009 WL 5066759, at *8 (E.D. Ark. Dec. 15, 2009)

“Although prospective relief is available under the MWA, none of the putative class representatives is employed by Butterball and none has provided evidence that she may be employed by Butterball in the future. Hence, none of the named plaintiffs has a personal stake in obtaining an injunction or declaratory judgement [sic]. The named plaintiffs therefore lack standing to seek prospective relief.” Id. at *8.


B-5

Case Discussion

Hightower v. JPMorgan Chase Bank, N.A., 2012 Wl 12878311, at *3 (C.D. Cal. Sep. 12, 2012)

“As a general rule, a former employee may not maintain a claim for injunctive relief against a former employer unless there is a possibility that he will return to work with the former employer. . . . Here, Plaintiffs have not alleged that any of them intends to seek future employment with Chase Bank. Therefore, they have not alleged facts that would support a claim for injunctive relief.” Id. at *3.

Jadwin v. County of Kern, 2009 WL 2424565, at *8 (E.D. Cal. Aug. 6, 2009)

“Plaintiff’s claim for injunctive relief is moot” because he was “not seeking reinstatement.” Id. at *8.

Kubicek v. Westchester Cnty., 2013 WL 5423961 (S.D.N.Y. Sept. 27, 2013) (Ramos, J.)

“[W]here a plaintiff seeks reinstatement with a former employee, courts have held that the former employee does have standing to seek prospective relief.” Id. at *8.

Parra v. Bashas’, Inc., 291 F.R.D. 360 (D. Ariz. 2013)

“[P]laintiff Estrada, as a former Food City employee, lacks standing to sue for injunctive relief against his former employer.” Id. at 399.

Wood v. Dixon, 2013 WL 6183143, at *4 (S.D. Ala. Nov. 26, 2013)

“Because Wood is no longer employed by the Baldwin County District Attorney’s Office—and because she is not seeking reinstatement—she simply lacks standing to assert prospective injunctive relief . . . .” Id. at *4.


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