Robert Heath v. Google Inc.

Filing 121

ORDER RE CASE MANAGEMENT CONFERENCE HELD ON OCTOBER 6, 2016. Signed by Judge Beth Labson Freeman on 10/7/2016. (blflc2S, COURT STAFF) (Filed on 10/7/2016)

1
2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4

SAN JOSE DIVISION

5
6

ROBERT HEATH, et al.,

Case No. 15-cv-01824-BLF

Plaintiffs,
7
v.
8
9

GOOGLE INC.,
Defendant.

ORDER RE CASE MANAGEMENT
CONFERENCE HELD ON OCTOBER 6,
2016
[Re: ECF 117]

10

United States District Court
Northern District of California

11
On October 5, 2016, this Court granted Plaintiff Cheryl Fillekes’ motion for conditional

12
13

certification and denied Plaintiff Robert Heath’s partial joinder. ECF 119. On October 6, 2016,

14

the parties appeared before the Court for a further case management conference (“CMC”) to

15

address several outstanding issues, including Cheryl Fillekes’ class definition, the opt-in notice,

16

consent to join forms, and the case schedule. The Court addresses each in turn below.

17

I.

CHERYL FILLEKES’ CLASS PERIOD AND DEFINITION

18

The parties seek to modify three aspects of the class definition as approved by the Court in

19

its Order Granting Fillekes’ Motion for Conditional Certification. See ECF 119. First, the parties

20

“agree the class period must be measured from the date Fillekes filed her EEOC charge on June

21

24, 2015, rather than measured from the date Heath filed his charge.” Joint Case Management

22

Statement 1, ECF 117 [hereinafter “Joint CMS”]. Thus, “the class period should begin August 28,

23

2014—300 days prior to the filing of Ms. Fillekes’ EEOC charge.” Id. Because the parties agree,

24

the Court will allow this administrative change.

25

Second, Fillekes seeks to revise the class definition “to include class members who learned

26

that they would not be hired on or after [August 28, 2014].” Joint CMS 1. Google did not

27

respond to this in the Joint CMS, but at the CMC, it stated that its only issue with this modification

28

was logistical. Because the Court also finds this to be an administrative change and a correct

1

statement of the law, the Court will allow the modification.
Finally, Google seeks to excise “the SWE family of positions” from Fillekes’ collective

2
3

action. Joint CMS 1. Google contends that Fillekes lacks standing to assert SWE-related claims

4

because she did not interview for an SWE position during the class period as revised, and “did not

5

present any substantial allegations or evidence ‘to suggest that SRE and SysEng candidates like

6

her are similarly situated to candidates for SWE positions.’” Id. at 3 (citing Opp’n 11, ECF 108).

7

Fillekes disagrees, and argues that “[c]andidates for SRE and SysEng positions are
similarly situated to SWE applicants, as all three positions require overlapping skill sets and job

9

responsibilities . . . .” Id. at 2. Fillekes also states that she was “first recruited for an SWE role at

10

Google and underwent a technical telephone screen before she was contacted by Google recruiter .

11
United States District Court
Northern District of California

8

. . for a SysEng role.” Id. at 3. She thus contends that she would “adequately serve as a named

12

plaintiff on behalf of other SWE applicants who were rejected by Google during the class period.”

13

Id.

14

At the CMC, Fillekes stated that excluding the SWE position would have an adverse

15

impact on the class, and would contravene the broad remedial purposes of the Age Discrimination

16

in Employment Act. Google argued, however, that the SWE position must be excluded because

17

Fillekes did not experience an adverse action relating to the SWE position within the limitations

18

period.
The Court finds that such a substantive modification of the class definition is

19
20

inappropriately raised in a Joint CMS. See Stanfield v. First NLC Fin. Serv., LLC, No. C-06-3892-

21

SBA, 2006 WL 3190527, at *2 (N.D. Cal. Nov. 1, 2006) (holding that the Court determines the

22

propriety and scope of the collective action using a stricter standard at the decertification stage).

23

The Court also finds that this issue was known to Google when it filed its opposition to Fillekes’

24

motion for conditional certification, but did not raise it. Accordingly, this issue is not properly

25

before the court. The Court DENIES Google’s request without prejudice to Google raising the

26

issue again in a motion to decertify the class, if any.

27
28

II.

IDENTIFYING RECIPIENTS OF THE OPT IN NOTICE
The parties have successfully met and conferred regarding a Third Party Administrator—to
2

1

be paid, as agreed upon at the CMC, by Fillekes’ counsel—and methods of determining who will

2

receive the opt in notice. The Court elects not to disturb this agreement.
Google estimates that it will take six to eight weeks to produce the names and contact

3
4

information to the Third Party Administrator. At the CMC, Plaintiff did not object to this

5

timeframe. Accordingly, the Court finds the proposed time frame acceptable.

6

III.

7

THE PROPOSED NOTICE
The Supreme Court has held that employees need to receive “accurate and timely notice

concerning the pendency of the collective action, so that they can make informed decisions about

9

whether to participate in the collective action. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165,

10

170 (1989). Here, both Fillekes and Google have provided a copy of their proposed opt-in notice

11
United States District Court
Northern District of California

8

and consent to join forms. ECF 117-1 (Fillekes’ proposed notice and opt-in form); ECF 117-2

12

(Google’s proposed Notice and opt-in form). “Although the parties have agreed on many aspects

13

of the opt-in notice and consent to join forms, they remain at an impasse on a number of issues.”

14

Joint CMS 4. The Court rules on each of the issues below.

15

First, Fillekes’ argues that the SWE positions should be included in the class definition and

16

opt in notice. Id. at 4. Google objects. Id. at 5. As discussed above, the Court has already

17

approved the class definition which includes SWE and declines to reconsider this issue at this

18

time. Accordingly, the SWE position will be included in the class definition.

19

Second, Fillekes seeks to title the notice, “Notice of Opportunity to Join Conditionally

20

Certified Collective Action Lawsuit to Recover Damages.” Id. at 4. Google objects to using the

21

term “opportunity” in the title of the notice. Id. at 5. Fillekes contends that use of the term

22

“opportunity” “is appropriate, as . . . [w]ithout this language, the notice title does not connote any

23

requirement to take further action.” Id. at 4. Google argues, however, that the title “gives the air

24

of a court-approved advertisement or notice of settlement, and it minimizes the substantial

25

litigation-related risks and opportunities that may be incumbent on individuals who elect to join

26

this action[.]” Id. at 5. The Court agrees with Google; the right to join a lawsuit is not an

27

opportunity. Accordingly, the notice may be titled “Notice of Conditional Certification of Lawsuit

28

Alleging Age Discrimination,” or something similar that is agreeable to both parties.
3

1

Third, Fillekes seeks to refer to the potential opt ins as “class members of a collective

2

action,” as opposed to “party plaintiffs.” Id. at 4. She contends that referring to the opt ins as

3

“party plaintiffs” is needlessly confusing. Id. Google objects, and argues that calling the opt ins

4

“party plaintiffs” informs them that they become “party plaintiffs” by opting in to the case. Id. at

5

5. The Court agrees with Google. See 29 U.S.C. § 216(b). Accordingly, and to the extent it is

6

necessary, the potential opt ins shall be referred to as “party plaintiffs” in the notice.
Fourth, Fillekes “objects to the inclusion of language concerning potential opt ins being

8

required to pay Google’s costs.” Joint CMS 4. Specifically, she contends that such language is

9

confusing and unnecessary. Id. Google argues that the proposed notice should include language

10

stating that if the potential opt ins join the case, they may be required to pay a portion of Google’s

11
United States District Court
Northern District of California

7

costs if Google prevails. Id. at 6. Google states that such “information is both accurate and

12

necessary to educate potential opt-ins of litigation-related risks and burdens that they undertake by

13

joining this action.” Id. Although some courts in this district have not required the inclusion of

14

such language, the Court agrees with those that have required it—it is more accurate to indicate

15

that the potential opt ins may be responsible for their share of the costs if they lose at trial. See

16

Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 541 (N.D. Cal. 2007) (finding that information

17

that informs potential plaintiffs that they share in liability should be included to present to

18

potential plaintiffs a fair statement of their rights). The parties shall meet and confer to determine

19

the appropriate language.

20

Fifth, Fillekes contends that language in the notice stating that Google denies that the case

21

may be maintained as a collective action for trial is duplicative to language regarding the case

22

being subject to decertification. Joint CMS 4; Ex. 2 to Joint CMS 2, ECF 117-2. Google argues

23

that such language is necessary “to maintain the neutrality of the statement.” Joint CMS 6. The

24

Court agrees with Google. The parties shall meet and confer to determine the precise language.

25

Sixth, Fillekes seeks to include Michael F. Brown or the law firm of DVG Law Partner

26

LLC on the notice, as he is co-counsel. Id. at 5. Google objects, because “[a]lthough Mr. Brown

27

is listed as counsel on Plaintiff Heath’s original complaint with an indication that he would file an

28

application for admission pro hac vice, he has not done so after almost one and a half years of
4

1

litigation.” Id. at 6. The Court agrees with Google. Neither Mr. Brown nor the law firm of DVG

2

Law Partner LLC may be listed on the notice until Mr. Brown or someone from his law firm

3

appears before this Court.
Finally, Google argues that the names and contact information for its counsel should be

4
5

provided on the class notice, instead of only the contact information for Fillekes’ counsel. Id.

6

Google supports its contention by stating that, “[u]nlike an order certifying a Rule 23 class, an

7

order conditionally certifying a collective action does not create an attorney-client relationship

8

between the named plaintiff’s lawyers and potential opt-ins.” Id. Fillekes objects, and contends

9

that conditional certification does create an attorney-client relationship between the named

10

plaintiff’s lawyers and potential opt ins. Id. at 5.

United States District Court
Northern District of California

11

Although the Court is not concerned about intimidation given that the potential opt ins are

12

not current Google employees, the Court agrees with Fillekes.1 Moreover, although Google cites

13

to a case before the District Court for the Eastern District of New York, it does not cite any case

14

law requiring that the notice include defense counsel’s contact information. Indeed, courts in this

15

district have rejected requests to include defense counsel’s contact information in FLSA collective

16

action notices. See, e.g., Harris v. Vector Marketing Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal.

17

2010); Adams, 242 F.R.D. at 541. Because the Court finds that including the name and contact

18

information for Google’s counsel would be confusing, it may not be included on the class notice.

19

The parties shall make the following additional changes to the proposed notice:

20

1.

21

Bold the statements in all capital letters on the first page of Fillekes’ proposed

notice. See Ex. 1 to Joint CMS 1, ECF 117-1.
2.

22

Modify the sentence on page four of Fillekes’ proposed notice that reads,

23

“Alternatively, you may retain your own counsel” to “Alternatively, you may retain your own

24

counsel at your own expense.” Id. at 4.
3.

25
26

Add a space on the consent form for potential opt ins to indicate that they are not

automatically represented by Fillekes’ counsel.

27
1

28

The Court, however, does not decide whether conditional certification creates an attorney-client
relationship between class counsel and the potential opt ins.
5

4.

1
2

IV.

The notice period shall be 90 days.

ROBERT HEATH’S SEVERANCE
Through the Joint CMS, Heath, whose partial joinder in Fillekes’ collective action was

3
4

denied (ECF 119), seeks to sever his individual claims from Fillekes’ conditionally certified

5

collective action. Joint CMS 7–8. Google has indicated its preference that Heath’s claims be

6

severed, as well. Id. at 8. To preserve judicial efficiency and economy, however, the Court

7

declines to sever Heath’s claims.

8

V.

It is HEREBY ORDERED that:

9

13

1. Fillekes’ class definition is modified as follows:
All individuals who: interviewed in-person for any Site Reliability
Engineer (“SRE”), Software Engineer (“SWE”), or Systems
Engineer (“SysEng”) position with Google, Inc. (“Google”) in the
United States; were age 40 or older at the time of the interview; and
were refused employment by Google; and received notice that they
were refused employment on August 28, 2014 through the present.2

14

2.

10
11
United States District Court
Northern District of California

ORDER

12

The parties shall meet and confer regarding the proposed notice in accordance with

15

the Court’s ruling above, and file a revised, joint proposed notice with the Court on or before

16

December 6, 2016.

17

3.

The request to sever Heath’s claims is DENIED.

18

4.

The trial and all pretrial dates are VACATED. The parties shall meet and confer,

19

and file a revised, joint proposed schedule with the Court on or before December 6, 2016.
5.

20
21

parties are to file a joint case management statement on or before February 23, 2017.
IT IS SO ORDERED.

22
23

A further case management conference is SET for March 2, 2017 at 11:00 am. The

Dated: October 7, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

24
25
26
27
2

28

At the CMC, the parties agreed that “the present” would be defined as the date the Court issued
its order on Fillekes’ motion for conditional certification, i.e., October 5, 2016.
6