“The Ninth Circuit confirmed what was clear from the start: the plaintiffs’ motion for class certification was just a replay of Wal-Mart v. Dukes.”
—Corbin K. Barthold, WLF Senior Litigation Counsel
(Washington, DC)—On December 24, the Ninth Circuit affirmed the denial of a motion to certify a class of current and former employees of Microsoft alleging gender discrimination. WLF filed an amicus curiae brief urging this affirmance. The case is Moussouris v. Microsoft, Case No. 18-35791.
Under Wal-Mart v. Dukes, 564 U.S. 338 (2011), a class may not challenge an array of employment decisions as discriminatory unless “some glue” holds “the alleged reasons for all those decisions together.” Without evidence that the various decisions are directly connected, Wal-Mart declares, it is “impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”
In its brief, WLF established that this case is legally indistinguishable from Wal-Mart. WLF also discussed the many benefits of dispersing authority to lower-level managers. To keep pace with the rapidly changing modern economy, WLF explained, companies must remain creative and adaptable—and thus decentralized.
Citing Wal-Mart, the Ninth Circuit concluded that the plaintiffs had failed to “identify a common mode of exercising discretion,” at Microsoft, “that pervades the entire company.” As the court noted, the members of the putative class “held more than 8,000 different positions in facilities throughout the United States,” and the managers overseeing this diverse set of employees “had broad discretion” over pay and promotion decisions. Class treatment was therefore inappropriate.
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