Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—E.D. Va.: Gannett newsroom employees can’t advance class claims; all but one individual claim fails, (Sep 8, 2025)

By Kathleen Kapusta, J.D.

The employees alleged that Gannett’s policy “imposed specific racial quotas in regard to employment.”

Striking class allegations brought by five former Gannett Co. employees who alleged the mass media holding company and newspaper publisher engaged in reverse race discrimination when it sought to enforce a companywide policy imposing racial quotas, a federal court in Virginia found the proposed class was not ascertainable and also suffered deficiencies with respect to commonality. And while it also dismissed the discrimination claims of four of the plaintiffs, it allowed one to continue to pursue his claim he was passed over for promotion in favor of a Black woman (Bradley v. Gannett Co. Inc., No. 1:23-cv-1100 (RED/WEF) (E.D. Va. Sept. 3, 2025)).

Racial quotas. According to the employees, Gannett, in 2020, sought to “institutionalize and tighten a company-wide policy which was purportedly designed to achieve inclusion quotas, but practically speaking disadvantaged class members in terms of their work and/or prospective work for the company.” The policy, they alleged, “imposed specific racial quotas in regard to employment” and was “a specific plan that dictated for at least the next five years employment decisions at Gannett would be done to ensure that the company’s set numerical racial requirements in the workforce were met.”

Inclusion report. While they at one point alleged that the company’s 2020 Inclusion Report, in which it committed to publishing demographics regarding the racial composure of its workforce on an annual basis, was the policy, they subsequently claimed it instead reflects a goal of achieving “racial and gender parity with the diversity of our nation, throughout our workforce.” They also alleged, upon information and belief, that managers were told “that no more straight White males should be hired going forward.”

The employees ultimately sued Gannett, asserting a race discrimination claim under Section 1981 on behalf of themselves and others similarly situated. After the court dismissed their complaint without prejudice, they filed a second amended complaint. Gannett again moved to dismiss and to dismiss/strike class allegation.

Policy allegations. The employees first argued that Gannett’s policy establishes race discrimination and requires denial of the company’s motion. Calling their allegations regarding the policy conclusory and speculative, the court noted that they originally relied on the 2020 Inclusion Report as a representation of the policy but later disavowed that. Instead, in the second amended complaint, they made several allegations as to what the policy was not, including that it was not the report and was not a “diversity policy.” Because they did not, however, include any details regarding the policy, the court found their allegations as to the policy were insufficient, on their own, to support their complaint.

Further, said the court, their allegations were contradicted by the 2020 Inclusion Report. For instance, while they claimed the policy “did not contain any requirement that employees be fairly treated,” the report contained a commitment to ensuring that “everyone has equal access and opportunities to thrive in a safe, welcome, and respectful environment.”

Upon information and belief. The employees, the court next observed, also relied heavily on allegations made “upon information and belief” but such allegations, “without context to render such beliefs plausible, add little to the Court’s consideration of the underlying claims here,” the court stated, explaining that it “is again left with allegations that support, based on the 2020 Inclusion Report, that a Policy regarding diversity and inclusion existed, but do not plausibly support Plaintiffs’ allegations regarding an affirmative policy of reverse discrimination.”

Individual claims. Turning to the plaintiffs’ individual claims, the court noted that the first employee, a content strategist and newsroom leader who was terminated after 21 years, claimed he was told the company decided to fire him rather than another worker who was Asian. He also alleged that he applied for an open position, was informed he was one of two finalists, the other also being a white male, but a new candidate—a Black woman—was chosen instead.

As to his termination claim, the court noted that it previously found he released it in a separation agreement. Regarding his failure-to-hire claim, the court found his allegations he was more qualified than the selectee were not only conclusory, they were also contradicted by a news article the plaintiffs incorporated into their second amended complaint which detailed the selectee’s experience. That the employee subjectively viewed himself as more qualified, said he court, was simply not enough to push his claim across the line from possible to plausible.

Dismissing this claim, the court also pointed out that he did not identify any of the decisionmakers or assert that they knew of and were implementing the policy.

Second employee. The second employee, who worked for the company for three years, alleged that he was forced to rescind an offer made to a white male applicant and required to write articles praising the policy. When he failed to carry out the company’s discriminatory directives, he received a low performance score that negatively impacted his ability to get a pay increase, bonus, or promotion. He ultimately resigned, publishing an article calling his last year “the most difficult” of his life.

Though he claimed he was constructively discharged, the court found his allegations fell well short of any objective standard of intolerability. It was completely unclear, said the court, as to what he was referring when he alleged that the company “took and vowed to continue to take tangible job benefits away” as he did not specifically identify which, if any, benefits were taken away from him. As to his claim he was forced to violate his personal ethics and ethics as a journalist, his journalistic ethics are not protected by Section 1981. Regarding the article describing his last year with the company, he linked the difficulty of that year to the stress of the media industry and the pandemic rather than any discrimination and credited the paper with “top-notch journalism.” Accordingly, the court dismissed this claim as well.

Third employee. The third employee, who worked for Gannett from 2021 to 2022, alleged he was not promoted to sports editor, two African-American candidates were offered positions but rejected them, and a non-Caucasian candidate who was ultimately hired was paid more than him. Noting that the employee continued to allege that he and the selectee were hired at different times in different circumstances, the court here pointed out that courts have recognized that employees are not similarly situated for purposes of pay discrimination where they were “hired... at different times.”

Dismissing this claim, the court observed that he also alleged that the selectee received a higher salary to ensure that he would accept the position, after two prior applicants declined it, and that he did not receive a raise when he first sought one because raises were evaluated at the end of the year based on performance.

Fourth employee. As to the fourth employee, a reporter from 2020 to 2021, she alleged she was transferred from covering education and nonprofits to covering two local counties and her former duties were assumed by a Black worker. She failed, however, to allege facts demonstrating that her change in assignment constituted an adverse employment action. Regarding her claim based on her subsequent termination, rather than pleading that she was satisfactorily performing her job at the time of her discharge, she alleged that she had been informed that “her performance was not up to par” and that she was “placed on a performance plan.”

Because she did not affirmatively allege that she was performing well or any facts from which it could determine that she was performing well and did not plead facts from which it could be inferred that race discrimination was the but-for cause of her termination, the court granted the company’s motion as to this claim as well.

Fifth employee. Finally, as to the fifth employee, a multimedia local government reporter from 2019 to 2020, the court noted that he alleged he was told he was amongst the highest performers in the newsroom and would, at some point, become a team lead. Instead, the role was awarded to a Black woman with “less accolades and experience.” Allowing his failure-to-promote claim to advance, the court found he remedied defects identified in the prior complaint and now alleged he would have applied for the position had it been posted, and that management repeatedly told him he was the most qualified for the role and “more qualified than other employees.”

Class claims. Finally, as to the employees’ class claims, the court first found the proposed class was not ascertainable. It consisted of all individuals who were subject to the company’s “Reverse Race Discrimination Policy” who either work or worked for Gannett based on any form of contractual relationship or were considered by Gannett to be placed into a position to perform work for it based on any form of contractual relationship. But by the employees’ own allegations, the court observed, every employee was “subject to” the policy and thus the proposed class includes every employee who has worked for Gannett while the policy was in place and every person who applied for a position while the policy was in place.

But not only was it clear the employees not intend to plead that every person will have been adversely affected by the policy, they pled the opposite. Further, even though all of the named plaintiffs were involved in the newsroom, the breadth of the proposed class as “all individuals” employed by Gannett would, said the court, “inevitably include persons vastly differently situated from the Named Plaintiffs such as human resources staff, IT professionals, and perhaps janitorial staff.”

Commonality. As to commonality, the court pointed out that the proposed class sought to bring claims based on at least five different legal theories—discharge, constructive discharge, failure to promote, retaliation, and pay disparity—and each of these different legal theories involves a different application of a prima facie case under McDonnell-Douglas.

Further, while they alleged a companywide policy, the did not allege any facts regarding how it was distributed to the “over 100 brands employing newsroom members” or who within any given newsroom was charged with implementing the policy. “Thus, with respect to any individual employment decision,” explained the court, “decisionmakers are going to be exercising a high level of discretion.” The plaintiffs, the court further observed, “would all be seeking relief based on different theories of recovery, based on different positions, at different newspapers, in different areas of the country, with different decisionmakers.”

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

The case is No. 1:23-cv-1100 (RED/WEF).

Judge: Alston, R., Jr.

Attorneys: Erin Kathryn Hanlon (Thomas & Solomon) and Philip John Harvey (Harvey Law Offices) for Steven Bradley, Stephen Crane, Barbara Augsdorfer, Logan Barry, and Noah Hiles. Laurin Howard Mills (Werther & Mills) and Mark Winslow Batten (Proskauer Rose) for Gannett Co. Inc.

Companies: Gannett Co. Inc.

Cases: RaceDiscrimination Discrimination ClassActions VirginiaNews