Employment: Reverse discrimination putative class action suit is dismissed

Where plaintiffs alleging they were the victims of reverse race discrimination twice failed to plead facts making their claims plausible, and their proposed class did not satisfy Rule 23, the suit was dismissed except for the failure-to-promote claim of one individual plaintiff.

Background

Steven Bradley, Stephen Crane, Noah Hiles, Barbara Augsdorfer and Logan Barry assert, in their putative class action second amended complaint, or SAC, a single count of reverse race discrimination pursuant to 42 U.S.C. § 1981 against Gannett Co. Inc. Gannett has filed a motion to dismiss.

Policy

Plaintiffs allege that, pursuant to a company-wide policy, Gannett “imposed specific racial quotas in regard to employment.” But plaintiffs include no details regarding the “Policy,” thus the court is left with significant questions regarding: (i) who developed and disseminated the Policy; (ii) what the specific contours of the Policy are; (iii) whether the Policy was written or simply verbal; (iv) how managers or editors in various newsrooms across the country were informed of the Policy; (v) who was charged with implementing the Policy and (vi) how plaintiffs know of the Policy. Plaintiffs’ bare allegations that there was a Policy without sufficient factual details are vague, conclusory and speculative.

Moreover, plaintiffs’ conclusory allegations regarding the purported Policy are contradicted by the 2020 Inclusion Report. Where plaintiffs’ allegations are contradicted by the documents that plaintiffs incorporate into the SAC, the court may “disregard” those allegations. Thus, these allegations also fail to support a plausible claim of discrimination.

Plaintiffs also heavily rely on allegations made “upon information and belief.” As judges in this district have held, such allegations “veer away from supporting plausible inferences, and turn instead toward unsupportable conclusory talismanic statements.” Such allegations, without context to render such beliefs plausible, add little to the court’s consideration of the underlying claims here.

Plaintiffs

Defendant argues that each of the named plaintiffs has failed to state a claim for relief under § 1981. Accordingly, the court analyzes the allegations of each individual plaintiff.

Bradley bases his § 1981 claim on two allegations: (i) his termination and (ii) the failure to hire him as an executive editor. The termination claim is barred by the separation agreement. And regarding the failure-to-hire claim, the fact that Bradley subjectively viewed himself as more qualified is not enough to push his claims of discrimination across the line from possible to plausible. And Bradley fails to identify any of the decisionmakers with respect to his failure-to-hire claim and fails to assert that the decisionmakers knew of and were implementing the policy.

It appears that Crane continues to premise his § 1981 claim on: (i) his alleged constructive discharge and (ii) retaliation. Although Crane broadly alleges that he “felt he had no other choice than to resign,” Crane falls well short of any objective standard of intolerability. With respect to retaliation, Crane has alleged no date when he engaged in protected activity, so the court cannot evaluate the temporal proximity between the alleged protected activities and the alleged material adverse actions of which he complains. To the extent that Crane alleges that he was retaliated against through his negative performance review, he has failed to establish that his performance review was a materially adverse action.

Hiles alleges that he was paid less than a similarly situated comparator who was not White. But he fails to allege facts showing that his alleged comparator was similarly situated in all respects to him.

Augsdorfer’s § 1981 claim is based upon: (i) her reassignment and (ii) her termination. First, Augsdorfer has not alleged facts demonstrating that her change in assignment constitutes an adverse employment action. Regarding her termination, Augsdorfer does not plead that she was satisfactorily performing her job at the time of her discharge; rather, she pleads that she had been informed that “her performance was not up to par” and that she was “placed on a performance plan.” Nor has she pleaded facts from which it could be inferred that race discrimination was the but-for cause of her termination.

Barry asserts a failure-to-promote claim that survives defendant’s motion to dismiss. He alleges that he would have applied for the position had it been posted and that defendant’s management “repeatedly told Mr. Barry that he was the most qualified for the role” and “more qualified than other employees.”

Class claims

Given the lack of ascertainability of the proposed class and the critical questions that must be answered on an individualized basis, the court concludes that it is appropriate to strike the class allegations from the amended complaint.

Defendant’s motion to dismiss granted in part, denied in part.

Bradley v. Gannett Co. Inc., Case No. 1:23-cv-1100, Sept. 3, 2025. EDVA at Alexandria (Alston). VLW 025-3-360. 33 pp.