Walker v. Accenture PLC
| Decision Date | 23 December 2020 |
| Docket Number | No. 3:19-cv-00888 (VAB),3:19-cv-00888 (VAB) |
| Citation | 511 F.Supp.3d 169 |
| Parties | Matthew WALKER, Plaintiff, v. ACCENTURE PLC and Accenture LLP, Defendants. |
| Court | U.S. District Court — District of Connecticut |
Daniel Kotchen, Kotchen & Low LLP, Washington, DC, Michael John Reilly, Cicchiello & Cicchiello, LLP, Hartford, CT, for Plaintiff.
Evan I. Cohen, Finn Dixon & Herling LLP, Stamford, CT, Jason Schwartz, Gibson, Dunn & Crutcher LLP, Washington, DC, Gabrielle Levin, Mylan L. Denerstein, Gibson, Dunn & Crutcher, LLP, New York, NY, for Defendants.
RULING AND ORDER ON MOTION TO DISMISS AND MOTIONS FOR SANCTIONS
Matthew Walker ("Plaintiff") has sued Accenture PLC and Accenture LLP (together, "Defendant" or "Accenture") under Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (" Section 1981"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2002e-2 ("Title VII"). Am. Compl., ECF No. 43 (Mar. 13, 2020). He seeks to sue on behalf of "[a]ll individuals who are not of South Asian race or Indian national origin who applied for positions with (or within) Accenture in the [United States] and were not hired, who were employed by Accenture but not promoted, and/or who Accenture involuntarily terminated." Id. ¶ 36.
Accenture has moved to dismiss the Amended Complaint. Mot. to Dismiss or, in the Alternative, Strike or Modify the Class Allegations, ECF No. 44 (Apr. 27, 2020) ("Def.’s Mot.").
Accenture and Mr. Walker have also cross-moved for sanctions. Mot. Seeking Sanctions Pursuant to Rule 11 and 28 U.S.C. § 1927, ECF No. 49 (Sept. 9, 2020) ("Def.’s Mot. for Sanctions"); Pl.’s Opp'n to Accenture's Mot. Seeking Sanctions Pursuant to Rule 11 and 28 U.S.C. § 1927 and Cross-Req. for Rule 11 Sanctions, ECF No. 52 (Oct. 21, 2020) ("Pl.’s Cross-Req. for Sanctions").
For the following reasons, Accenture's motion to dismiss is DENIED .
With respect to Accenture's motion for sanctions, and Mr. Walker's cross-motion for sanctions, these are DENIED without prejudice to renewal until Mr. Walker's claims are addressed on the merits through an appropriate dispositive motion or at trial.
Accenture PLC is a "multinational professional services company that provides consulting, technology, strategy, digital, and operations services to clients located worldwide." Am. Compl. ¶ 7. Accenture PLC "maintains approximately 48 offices in the United States and employs about 51,800 employees locally." Id.
Accenture LLP is a wholly-owned subsidiary of Accenture PLC and provides similar business services. Id. ¶ 8.
Mr. Walker, a Caucasian man who resides in California, id. ¶ 5, allegedly "worked for Accenture from November 2011 through "at least June 2015" as "an application performance consultant and was a member of [Accenture's] technology consulting segment," id. ¶ 28. Mr. Walker allegedly "holds a B.S. in Accounting and Information Systems from San Jose State University and has over ten years of professional experience." Id. ¶ 27. During his time at Accenture, he allegedly "traveled to various client sites across the [United States]" and "was responsible for identifying, diagnosing, and resolving performance issues relating to clients’ applications." Id. ¶ 28.
Accenture allegedly "contracts with [United States] companies to provide IT-related services," and after securing a contract, "hires individuals to fill positions to service the client." Id. ¶ 14. After they complete a client-specific project, individuals allegedly "are placed in an unallocated or unbillable status, also known as being ‘benched.’ " Id. While on the bench, "individuals must again seek new positions within Accenture, going through an application and interview process, just as external applicants must." Id.
Individuals, including "[e]mployees who are on the bench," allegedly apply to positions at Accenture through "two internal portals: MyScheduling and Careers Marketplace." Id. ¶ 15. Once an application is submitted, an employee's resume is allegedly "reviewed by the client team that posted the open role to confirm the employee's qualification for the position," and the client team then contacts the employee's "Talent Fulfillment Specialist," who matches benched employees to open roles based on the worker's availability and skill set. Id. Talent Fulfillment Specialists therefore allegedly "serve as a gatekeeper for benched employees, as their input can either streamline an employee for a certain role or block him or her from further consideration by Accenture." Id. Accenture also allegedly "has a policy to terminate employees who are on the bench for more than [ ] forty days." Id. ¶ 24.
In January 2016, Accenture allegedly "introduced a new platform called Performance Achievement and began offering quarterly appraisals" of employees. Id. ¶ 23. Under the Performance Achievement program, employees allegedly receive one of three appraisal ratings: either "Need Improvement," "Continue to Grow," or "Promoted." Id. Those who receive "strong appraisals from their managers" are allegedly "more likely to receive a promotion." Id.
Accenture allegedly "engages in a practice of securing H-1B and L-1 visas for South Asian workers located overseas" to staff their positions in the United States. Id. ¶ 17. Accenture allegedly "seeks to maximize the number of visas it receives each year from the federal government" by "submit[ting] visa petitions for more positions than actually exist in the [United States] ... to maximize its chances of securing the highest number of available H-1B visas from the lottery process." Id. ¶ 18. From 2015 to 2018, Accenture allegedly "received 20,378 new H-1B visas (or visa amendments) and 432 new L-1 visas (or visa amendments)." Id. These individuals are allegedly "placed in Accenture's inventory of visa workers for use on future projects in the [United States]." Id.
"Visa-ready" individuals are allegedly "given preference" in job applications. Id. ¶ 19. Accenture also allegedly "specifically earmark[s]" certain job postings "for Global Careers Program Candidates (‘GCPs’), i.e. , visa holders, further limiting opportunities for non-South Asians." Id. As Accenture has allegedly stated in its filings with the United States Securities and Exchange Commission, "[a]n important element of our global business model is the deployment of our employees around the world, which allows us to move talent as needed," and "increased regulation of immigration or work visas, including limitations placed on the number of visas granted," could cause difficulties in staffing employees and increase costs. Id. ¶ 21.
Accenture also allegedly "gives preference to South Asian candidates" when "conducting local hiring," or hiring of individuals already residing within the United States. Id. ¶ 22. Accenture's recruiters allegedly "disproportionately seek out and recruit South Asian candidates," and Accenture then allegedly gives preference to South Asian candidates "over comparably or better qualified non-South Asian candidates," and also gives preference to "South Asian and Indian contract workers." Id.
Accenture also allegedly "promotes South Asians at disproportionately high rates compared to non-South Asians." Id. ¶ 23. South Asians allegedly are "regularly awarded higher appraisal scores" on the Performance Achievement platform as "compared to their non-South Asian colleagues, and, as a result, South Asians are regularly promoted at substantially higher rates than non-South Asians." Id. As Mr. Walker alleges, "the vast majority of Accenture's managerial and supervisory positions in the [United States] are filled by South Asian individuals." Id.
Non-South Asian employees also allegedly are terminated "at disproportionately high rates compared to South Asians." Id. ¶ 24. This is allegedly because "South Asians are given preference for new positions, and these individuals are used to displace non-South Asians on existing projects," which "relegate[s] [non-South Asian employees] to the bench and unable to secure new positions within Accenture," ultimately leading to termination under Accenture's forty-day policy. Id.
Mr. Walker alleges that several of these practices, including the practice of relying on visa workers to staff positions in the United States; the practice of applying for large numbers of work visas; the practice of internally allocating employees; the practice of retaining contract workers; and the hiring and project-staffing process as a whole "result[ ] in available positions overwhelmingly going to South Asian individuals, to the exclusion of non-South Asians." Id. ¶ 25.
These practices have also allegedly impacted "[t]he composition of Accenture's U.S. workforce," as "at least 70 [percent] (if not more) of Accenture Consulting and Accenture Technology's United States-based workforce is South Asian (primarily from India), as is the vast majority of its managerial and supervisory-level staff." Id. ¶ 26.
Mr. Walker alleges that during his time at Accenture, he "performed well" in his role, at least one client was "impressed by [his] performance and later asked for him to return for subsequent projects," and on another project he "consistently worked extra hours each week" to keep the project on track. Id. at ¶ 29. He allegedly, however, "was never promoted by Accenture during his 3.5 years with the company." Id.
Mr. Walker alleges that at the end of each of his projects, he was placed on the "bench," and during each time on the bench, "he diligently applied to open positions listed on MyScheduling and reached out to his Talent Fulfillment Specialist for support," but "often received no response to his applications." Id. ¶ 30.
In June 2015, Mr. Walker allegedly received a call from his "Career Counselor" at Accenture, "who informed him of his...
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...proffer statistics at the pleading stage which made other plausible non-discriminatory explanations unlikely. Walker v. Accenture PLC , 511 F.Supp.3d 169 (D. Conn. Dec. 23, 2020). Third Circuit Plaintiffs, defendant’s only Spanish-speaking employees, challenged implementation of a blanket “......