Mobley v. Workday, Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DEREK L. MOBLEY, et al.,
Plaintiffs,
v.
WORKDAY, INC.,
Defendant.
Case No. 23-cv-00770-RFL
ORDER DENYING MOTION FOR
CERTIFICATION UNDER 28 U.S.C.
§ 1292(B)
Re: Dkt. No. 286
Defendant Workday, Inc. seeks certification of an interlocutory appeal of the Court’s
order holding that 29 U.S.C. § 623(a)(2) of the Age Discrimination in Employment Act
(“ADEA”) authorizes disparate impact claims brought by job applicants. (Dkt. No. 286
(“Motion”).) Plaintiffs oppose the motion. (Dkt. No. 307.) Having considered the parties’
arguments, the Motion is DENIED.
A court may certify an appeal of an interlocutory order only it finds that three factors are
present: (1) That the “order involves a controlling question of law [2] as to which there is
substantial ground for difference of opinion and [3] that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “Section
1292(b) is a departure from the normal rule that only final judgments are appealable, and
therefore must be construed narrowly.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067
n.6 (9th Cir. 2002).
The first two Section 1292(b) factors are met. Whether or not disparate impact claims
may be brought by job applicants under Section 623(a)(2) is a question of law on which there is
substantial ground for difference of opinion. Compare Kleber v. CareFusion Corp., 914 F.3d
480 (7th Cir. 2019) (en banc), with Rabin v. PricewaterhouseCoopers LLP, 236 F. Supp. 3d
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1126 (N.D. Cal. 2017). However, at this stage of the litigation, it no longer appears that an
immediate appeal would materially advance the ultimate termination of the litigation.
The applicability of Section 623(a)(2) to job applicants asserting disparate impact claims
was first raised by Workday two years ago, at a hearing on Workday’s motion to dismiss. (Dkt.
No. 76 at 29–31.)1 Although the argument was waived, the Court reached the merits in its order
and found that job applicants can bring disparate impact claims under Section 623(a)(2). Mobley
v. Workday, Inc., 740 F. Supp. 3d 796, 811 n.4 (N.D. Cal. 2024). The case then proceeded
through provisional certification of the ADEA collective, the development of a notice plan for
the ADEA collective—in a process that required expenditure of significant party and judicial
resources—and public notice that resulted in thousands of opt-ins to the provisionally certified
ADEA collective. Discovery as to the ADEA claims has been ongoing during this entire time,
and Workday’s decertification motion is due in less than a month.
At this late stage of the case, it no longer appears likely that an immediate appeal would
advance the ball for the parties. This is especially true given that litigation will continue as to
materially similar claims brought under the California Fair Employment and Housing Act for the
reasons explained in the order on Workday’s Motion to Dismiss and to Strike the Third
Amended Complaint. (Dkt. No. 360.) And, if the appeal were to affirm the existing ruling, the
termination of the litigation would be delayed. In either event, the Ninth Circuit could be
burdened with a second appeal when the case concludes. Adding to the probable judicial
inefficiency of Workday’s request is the fact that Plaintiffs have since amended their complaint.
The Ninth Circuit has expressed disapproval for the certification of a motion to dismiss order
when the plaintiff has subsequently amended the operative pleadings. See Ocean S. v. County of
Los Angeles, 2026 WL 1362108, *2 n.2 (9th Cir. Jan. 8, 2024) (stating that “presenting us with
arguments focused on a complaint that had been superseded in the district court by a later
amended complaint introduced substantial inefficiency on appeal and has likely delayed the
1 Citations to page numbers refer to ECF pagination.
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entire proceeding” and “should be avoided”).
Therefore, although receiving further clarity on this issue could benefit the parties and the
public, that clarity is best pursued through a post-judgment appeal. The Motion is DENIED.
IT IS SO ORDERED.
Dated: July 2, 2026
RITA F. LIN
United States District Judge
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