2:17-cv-06848
C.D. Cal.Oct 27, 2022Background
- Plaintiffs (four named individuals; later substituted claimant Brian Cox) allege Cognizant discriminated against non‑South Asian / non‑Indian applicants and employees in hiring and bench terminations (Section 1981 and Title VII disparate treatment and Title VII disparate impact). Class period begins Sept. 18, 2013; Title VII subclass limited by filing deadlines.
- Cognizant is a large IT consulting firm that heavily used H‑1B/L visa holders (predominantly South Asian) and organized U.S. staff into “Class Bands”; plaintiffs focus on bench placements and bench‑terminations policies ("visa readiness" and "visa utilization").
- Plaintiffs proffer statistical evidence (Dr. Phillip Johnson) showing large South Asian representation among hires/visa‑holders and higher involuntary termination rates for non‑South Asians, with CDP–Location Preference codes comprising a large share of bench terminations.
- Plaintiffs also proffer industry/context expert Dr. Ronil Hira to explain why firms reliant on visa holders might prefer them; EEOC issued a Letter of Determination finding reasonable cause of nationwide discrimination by Cognizant.
- Cognizant moved to exclude both experts (Daubert), moved for partial summary judgment on the individual claim of Edward Cox, and opposed class certification; plaintiffs moved for sanctions over a litigation chart treating CDP–Location Preference as “voluntary.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Phillip Johnson (Daubert) | Johnson’s statistical analyses reliably show classwide disparities in hiring and terminations supporting commonality and predominance. | Johnson’s methods are unreliable: wrong benchmark, failure to control for confounders (e.g., willingness to relocate), miscoding of termination reasons, and aggregation hides heterogeneity. | Denied. Court found methodology sufficiently reliable for class‑certification stage; challenges go to weight, not exclusion. |
| Admissibility of Dr. Ronil Hira (Daubert) | Hira provides industry, immigration, and cultural context explaining incentives to prefer visa holders; relevant to common issues. | Hira is methodologically unsound, relies on selected documents and generalizations, and offers opinions beyond expertise (e.g., wage‑theft). | Denied. Court found Hira qualified and his opinions relevant; some conclusions (e.g., wage‑theft) not relied on. |
| Plaintiffs’ sanctions re: Exhibit 25 (CDP–Location Preference labeled voluntary) | Cognizant manufactured evidence to recast bench terminations as voluntary to defeat liability and expert analyses. | Exhibit 25 was prepared for deposition; no bad faith fabrication—coding ambiguity exists. | Denied. No clear evidence of bad faith; internal record shows inconsistent treatment of the code; sanction standard not met. |
| Cognizant’s partial summary judgment on Edward Cox (individual claims) | (Proceeding under Teamsters presumption for class context) Cox’s rejection and subsequent treatment plausibly caused by discriminatory practices; triable issues remain. | No vacancy was filled; internal preference for internal candidate and legitimate business reasons defeat claim. | Denied. Court treated Phase One presumed in plaintiffs’ favor and found triable issues of fact (internal hiring could be pretextual). |
| Class certification — Hiring Class | Plaintiffs: companywide visa policies and statistics provide the necessary "glue" to support commonality and predominance for hiring claims. | Cognizant: hiring is decentralized, client control and varied processes create individualized issues; statistics insufficient; EEOC not dispositive. | Denied for Hiring Class. Individualized issues (different jobs, client influence, positions excluding visa holders) predominate. |
| Class certification — Terminations Class | Plaintiffs: statistical disparities, policies, and EEOC finding support companywide practice affecting terminations. | Cognizant: many termination reasons are unrelated to visa policies (e.g., separation agreements, misconduct); individualized defenses predominate. | Denied for broad Terminations Class. Individualized issues predominate except for a narrower bench subclass. |
| Class certification — Bench Terminations Subclass | Plaintiffs: limiting to involuntary bench terminations ties the class to the allegedly visa‑driven practices; statistics and documents supply common proof. | Cognizant: individualized defenses (business necessity, reason for each termination) and manageability concerns. | Granted in part. Bench Terminations Subclass certified (Section 1981: Sept. 18, 2013–certification date; Title VII subclass: Dec. 15, 2016–certification date). Plaintiffs’ counsel and two representatives appointed. |
| Punitive damages (classwide) | Plaintiffs: evidence of company conduct and awareness supports a classwide question on availability of punitive damages. | Cognizant: due process concerns and individualized inquiries may defeat classwide punitive issues. | Held available for Phase One (availability only), not the amount; individualized issues reserved for Phase Two. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (Court acts as gatekeeper on expert admissibility)
- Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (use of statistical/expert evidence at class stage evaluated for reliability and relevance)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (rigorous commonality inquiry for employment class actions)
- Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (pattern‑or‑practice framework and Phase Two individualized determinations)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (prima facie burden‑shifting framework for individual disparate treatment claims)
- Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651 (Rule 23 requires preponderance showing at certification; discuss admissible evidence)
- Sali v. Corona Reg'l Med. Ctr., 909 F.3d 996 (admissibility should not be dispositive at class certification; weight issue)
- Bowerman v. Field Asset Servs., Inc., 39 F.4th 652 (manageability and individualized damages issues can defeat certification)
- Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (standard for punitive damages in Title VII cases)