RICHARDS v. ELI LILLY & COMPANY et al

Filing 82

ORDER ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION AND DEFENDANTS' MOTION TO STRIKE - Richards has met her step one burden to certify her ADEA claims as a conditional collective action under the FLSA. Her Motion for Conditional Certification and Issuance of Notice and Opt-In Form (Filing No. 41 ) is GRANTED. Eli Lilly's Motion to Strike (Filing No. 58 ) is GRANTED, and Filing No. 56-1 is stricken. Richards is granted leave file a new a consent form for Sweeney that is consistent with this Order. SEE ORDER. Signed by Judge Tanya Walton Pratt on 3/25/2024. (KAA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MONICA RICHARDS individually and on behalf of )
all other similarly situated individuals,
)
)
Plaintiff,
)
)
v.
)
)
ELI LILLY & COMPANY,
)
LILLY USA, LLC,
)
)
Defendants.
)

Case No. 1:23-cv-00242-TWP-MKK

ORDER ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF
COLLECTIVE ACTION AND DEFENDANTS' MOTION TO STRIKE
This matter is before the Court on Plaintiff Monica Richards' ("Richards") Motion for
Conditional Certification and Issuance of Notice and Opt-In Form (Filing No. 41). Richards
initiated this action individually and on behalf of others similarly situated, against Defendants Eli
Lilly & Company and Lilly USA, LLC ("Lilly USA") (collectively "Eli Lilly" or "Defendants"),
alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq., and the Massachusetts Anti-Discrimination Law, G.L. c. 151B § 4(1B) (Filing No. 1).
Richards seeks to bring the ADEA claim as a collective action under 29 U.S.C. §§ 216(b), 626(b).
Also before the Court is Defendants' Motion to Strike Opt-In and Consent Form (Filing No. 58).
For the reasons set forth below, both motions are granted.
I. BACKGROUND
The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. §
623(a)(1). Aggrieved employees may enforce the ADEA through certain provisions of the Fair

Labor Standards Act of 1938 ("FLSA"), and the ADEA specifically incorporates § 16(b) of the
FLSA, 29 U.S.C. § 216(b). Kimel v. Florida Bd. of Regents, 528 U.S. 62, 67–68 (2000).
Richards is a fifty-three (53) years old woman who has worked for Eli Lilly since August
1, 2016. (Filing No. 1, ¶ 3). She alleges that,
Since at least 2017, Eli Lilly has been engaged in a companywide effort to shift its
personnel focus to Millennials at the detriment of older employees, openly
espousing an aggressive strategy of hiring and retaining Millennial employees. As
a part of its effort to retain Millennial workers, Eli Lilly has created resource groups
for younger employees who it calls “Early Career Professionals” and has
systematically favored younger employees by giving them promotions to the
exclusion of older employees who are equally or better qualified.
Id. ¶ 10. Richards contends that Eli Lilly both knowingly and willfully denied promotions
systematically to qualified employees who were older than forty, including herself and all other
similarly situated employees, and she alleges Eli Lilly’s discriminatory preferences for younger,
Millennial employees has been well documented. Id. at Id. ¶ 11.
Richards seeks conditional certification of a collective action, which would permit courtauthorized notices to be sent to potential opt-in plaintiffs. Her proposal for her collective action
consists of: "All Eli Lilly employees 1 who were 40 or older when they were denied promotions
for which they were qualified, since February 12, 2022." (Filing No. 41 at 1.)
Opposing certification, Defendants argue Richards does not demonstrate she is "similarly
situated" to other members of the proposed collective because she does not point to another specific
employee who qualifies for the proposed collective, nor identify a common policy or plan that
impacted such employees (Filing No. 45 at 12). Defendants further argue the more lenient "modest
showing" standard on which Richards relies is not required by statute or Seventh Circuit case law

Defendants and the Court understand the sought class to include Lilly USA employees, not just those of Eli Lilly
(see, e.g., Filing No. 45 at 7).

1

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and that she fails to carry her burden under the more demanding "preponderance of the evidence"
standard that Defendants seek to apply. Id. at 12, 19–33.
II. DISCUSSION
Richards alleges Eli Lilly engaged in rampant age discrimination by systematically denying
promotions to her and qualified employees who are older than 40, while disproportionately
promoting younger employees, in violation of the ADEA. She asks the Court to conditionally
certify a collective action. Richards points out, that "[u]nder the ADEA (like the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA")), employees who wish to participate in a
collective action challenging age discrimination may do so by affirmatively "opting in" to join the
lawsuit." (Filing No. 42 at 3.)
The Seventh Circuit has not identified a specific standard for certifying a collective action
under the FLSA. Iannotti v. Wood Grp. Mustang, 603 F. Supp. 3d 649, 653 (S.D. Ill. 2022).
Richards' motion is styled as a motion for "conditional" collective certification because many
courts in this Circuit have traditionally applied an ad hoc two-step certification process "in which
the first step is merely preliminary." Fillipo v. Anthem Companies, Inc., No. 1:22-cv-926, 2022
WL 18024818, at *1 (S.D. Ind. Dec. 30, 2022) (citing In re New Albertsons, Inc., No. 21-2577,
2021 WL 4028428, at *1 (7th Cir. Sept. 1, 2021) (describing two-step collective certification));
see, e.g., Hawkins v. Alorica, Inc., 287 F.R.D. 431, 438 (S.D. Ind. 2012); Owens v. GLH Cap.
Enter., Inc., No. 3:16-cv-1109, 2017 WL 2985600, at *1 (S.D. Ill. July 13, 2017) (citing Jirak v.
Abbott Labs., Inc., 566 F. Supp. 2d 845, 847 (N.D. Ill. 2008) (collecting cases)).
Defendants correctly observe (see Filing No. 45 at 24–25) that the two-step process is not
statutorily mandated, see 29 U.S.C. § 216(b), nor required by the Seventh Circuit. See Bigger v.
Facebook, Inc., 947 F.3d 1043, 1049 n.5 (7th Cir. 2020). District courts throughout this Circuit,
entrusted with "wide discretion" in managing collective actions, New Albertsons, 2021 WL
3

4028428 at *2 (quoting Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th Cir. 2010)), have
nevertheless commonly employed the two-step process. See id. at *1; Duan, 2023 WL 5955911,
at *1.
At the first step — the only step relevant here — the plaintiff need only make a "modest
factual showing sufficient to demonstrate that they and potential plaintiffs together were victims
of a common policy or plan that violated the law." Duan v. MX Pan Inc., 2023 WL 5955911, at
*1 (S.D. Ind. Aug. 21, 2023) (quoting New Albertsons, 2021 WL 4028428 at *1). If the plaintiff
meets this standard, the court may conditionally certify the suit as a collective action and allow the
plaintiff to send notice of the case to similarly situated employees who may then opt-in as
plaintiffs. Id.
Importantly, at step one, the court is not required "to make any findings of fact with respect
to contradictory evidence presented by the parties nor does th[e] court need to make any credibility
determinations with respect to the evidence presented." Berndt v. Cleary Bldg. Corp., No. 11-cv791, 2013 WL 3287599, at *7 (W.D. Wis. Jan. 25, 2013) (quoting Severtson v. Phillips Beverage
Co., 141 F.RD. 276, 278–79 (D. Minn. 1992)). "Therefore, where the parties' evidentiary
submissions directly conflict, they will be resolved — for purposes of this order only — in
plaintiffs' favor." Id. (citing Larsen v. Clearchoice Mobility, Inc., No. 11 C 1701, 2011 WL
3047484, at *1 (N.D. Ill. Jul. 25, 2011)). In exercising discretion, district courts must "respect
judicial neutrality and avoid even the appearance of endorsing the action's merits." Bigger, 947
F.3d at 1046.
At the more stringent second step following discovery, the court reevaluates the conditional
certification and "determine[s] whether there is sufficient similarity between the named and optin plaintiffs." Duan, 2023 WL 5955911, at *1. "If there is sufficient similarity, . . . the matter

4

[may] proceed to trial on a collective basis; if there is not, the court may revoke conditional
certification or divide the class into subclasses." Id.
Defendants contest the "modest factual showing" standard at this stage and urge the Court
to instead apply the "preponderance of the evidence" standard "given the dangers posed by
collective actions in exerting undue pressure on defendants to settle." (Filing No. 45 at 26.)
Defendants point to the decision in Bigger and argue "trial courts must 'shield against abuse of the
collective action device' by assessing certification under familiar evidentiary standards." Id. at 28
(quoting 947 F.3d at 1050).
Bigger addressed, as a matter of first impression, a defendant's opposition to the issuance
of notice to individuals who allegedly entered mutual arbitration agreements that waived the right
to join any collective action. See 947 F.3d at 1047, 1049. The Seventh Circuit held that an
overseeing court may authorize notice to such individuals "unless (1) no plaintiff contests the
existence or validity of the alleged arbitration agreements, or (2) after the court allows discovery
on the alleged agreements' existence and validity, the defendant establishes by a preponderance of
the evidence the existence of a valid arbitration agreement for each employee it seeks to exclude
from receiving notice." Id. at 1047 (emphasis added).
This Court is not persuaded that the Bigger decision imposes a "preponderance of the
evidence" standard on any party besides an "employer seeking to exclude employees from
receiving notice" and to demonstrate "the existence of a valid arbitration agreement." Id. at 1050.
No other decision from this court cites Bigger for such a proposition, even in cases involving
arbitration agreements and invoking its analytic framework. See, e.g., Rodgers-Rouzier v. Am.
Queen Steamboat Operating Co., LLC, 2022 WL 823697, at *2–*3 (S.D. Ind. Mar. 18, 2022).

5

The Court declines Defendants' invitation to apply the Fifth Circuit's framework in Swales
v. KLLM Transp. Servs., LLC, 985 F.3d 430 (5th Cir. 2021), or the Sixth Circuit's more recently
established version in Clark v. A&L Homecare & Training Center, LLC, 68 F.4th 1003 (6th Cir.
2023) (see Filing No. 45 at 28–29). When presented with the issue, other courts throughout the
Seventh Circuit have refused to adopt Swales and/or Clark and have continued to adhere to the
two-step approach. See, e.g., New Albertsons, 2021 WL 4028428 at *2 (declining to hold that
district court's decision to apply two-stage collective certification framework instead of Swales,
"was patently erroneous or outside the bounds of judicial discretion"); O'Neil v. Bloomin' Brands
Inc., 2023 WL 8802826, at *3 n.2 (N.D. Ill. Dec. 19, 2023) (disagreeing with Defendants' claim
that Swales and Clark show the "tide is shifting away from a two-stage approach to certification");
Brant v. Schneider Nat'l Inc., 2023 WL 4042016, at *2 (E.D. Wis. May 4, 2023) (declining
invitation to depart from the two-step process), reconsideration denied, 2024 WL 218416 (E.D.
Wis. Jan. 19, 2024); McColley v. Casey's Gen. Stores, Inc., 559 F. Supp. 3d 771, 776, 2021 WL
1207564 (N.D. Ind. 2021) ("The FLSA certification two-step remains the dance of this circuit —
as least for the time being — and the court adheres to it."). In the absence of a Seventh Circuit
case overruling this long-applied approach, the Court finds no reason to depart from it and now
turns to the issue of whether the potential plaintiffs are "similarly situated" for purposes of
conditionally certifying the collective action.
A.

Richards' Evidentiary Support
To support her allegations that Defendants systematically denied promotions to qualified

employees who were older than forty and disproportionately promoted younger employees over
older workers, Richards submits an affidavit (Filing No. 42-4), as well as those of one former
employee Christina Sosa ("Sosa") (Filing No. 42-6), and one current Eli Lilly employee, Herold
Oluoch ("Oluoch") Filing No. 42-5), asserting they had similar experiences (see Filing No. 42 at
6

10). She also provides an affidavit of an Eli Lilly executive business manager James Sweeney
("Sweeney) (Filing No. 42-3) and cites to a pair of prior lawsuits brought before this court (see
Filing No. 42 at 4–6). In the first suit, which has been resolved by consent decree, the Equal
Employment Opportunity Commission ("EEOC") alleged that Lilly USA failed to hire applicants
aged forty and over for Sales Representative positions from April 2017 through December 2021
(see EEOC v. Lilly USA, LLC, No. 1:22-cv-01882 (S.D. Ind. Oct. 10, 2023)). In the second suit,
which has been since dismissed with prejudice, Eli Lilly employees brought a class and collective
action alleging that Eli Lilly engaged in systematic age discrimination with respect to the hiring
practices of Sales Representatives in the Diabetes and Primary Care Business Units (see Grimes
et al. v. Eli Lilly and Co., No. 1:21-cv-2367 (S.D. Ind. Oct. 13, 2023)).
1.

Similarly Situated Individuals

Defendants first point out that Richards fails to identify a single specific employee who is
similarly situated to herself (Filing No. 45 at 10). They assert that the former Lilly employee, Sosa,
left before the start of the collective period and the current employee, and Oluoch "does not claim
that he ever actually sought and was denied a promotion." Id. at 11 (emphasis in original).
Sosa's affidavit describes a "shift" in treatment in 2020 and her subsequent constructive
discharge, which occurred in November 2021 (see Filing No. 42-6, ¶¶ 6–10). Upon review, the
Court finds that, although the potential collective action class cannot include Sosa, her affidavit
supports Richards' underlying argument about Eli Lilly's alleged common policy or plan involving
age discrimination. The actions therein — of a younger Eli Lilly employee with lower sales
numbers receiving promotion support unoffered to the older employee affiant — are consistent
with the complaint and helpfully illustrate circumstances similar to those experienced by Richards.
Defendants' arguments about the current employee, Oluoch, and his unsuccessful
promotions are likewise unpersuasive and inappropriate at this step. His affidavit describes five
7

internal promotion slots opened annually to department employees (Filing No. 42-5, ¶ 3). In 2017,
Oluoch started noticing "much younger employees . . . being promoted over [him] and at much
higher rates." Id. ¶ 4. He clearly asserts Eli Lilly "passed [him] over for a promotion in favor of
an [Early Career Professional ("ECP")] at least eight times" and that he reported the alleged age
discrimination to Human Resources in 2022. Id., ¶¶ 6, 7. The Court finds this to be sufficiently
supportive of Richards' theory that Defendants attempted in the relevant time periods to retain
Millennial workers "by promoting them over" older counterparts (Filing No. 1, ¶ 1), who were
"passed over for promotion." Id., ¶ 23.
Although Defendants make their own substantial allegations (supported by exhibits and
declarations), including that Oluoch "did not apply to any open job postings" from February 12,
2022, onward (Filing No. 45-8, ¶ 8), at this initial notice stage of the proceedings, the Court does
"not make merits determinations, weigh evidence, determine credibility, or specifically consider
opposing evidence presented by a defendant." Prater v. All. Coal, LLC, 2022 WL 22285581, at
*2 (S.D. Ind. Mar. 22, 2022) (quoting Nicks v. Koch Meat Co., 265 F. Supp. 3d 841, 849 (N.D. Ill.
2017) (St. Eve, J.)). Reliance on defendant declarations is largely misplaced when the court
analyzes certification under step one. See Briggs v. PNC Fin. Servs. Grp., 2016 WL 1043429, at
*6 (N.D. Ill Mar. 16, 2016) (defendant's declarations "are futile in the Court's step one analysis");
Salmans v. Byron Udell & Assocs., 2013 WL 707992, at *4 (N. D Ill. Feb. 26, 2013) ("[W]hether
… discrepancies [between potential class members] will become important down the road does
not affect the current question of conditional certification.") (citation omitted). Challenging the
factual merits of the collective action in such a manner is properly addressed at the second
certification step, when Defendants' opportunity to decertify the collective action will occur.

8

Defendants nevertheless maintains Richards' evidence regarding similarly situated
individuals is conclusory and speculative. While ultimately the evidence may show this to be true,
it is sufficient at this step that Richards merely shows "some factual nexus" that connects her to
"other potential plaintiffs" as "victims of an unlawful practice." Berndt v. Cleary Bldg. Corp., No.
11-cv-791, 2013 WL 3287599, at *6 (W.D. Wis. Jan. 25, 2013). The Court finds Richards has
succeeded in doing so.
Throughout her motion and reply, Richards draws heavily upon the expertise of Eli Lilly
executive business manager, Sweeney, who, for the preceding twenty-two years, has assisted in
the hiring, recruitment, and development of sales team members and attended numerous executive
level recruitment and hiring meetings (e.g., Filing No. 42 at 6–8; Filing No. 49 at 17–18; see also
Filing No. 42-3, ¶ 1).

Sweeney's detailed affidavit provides the necessary "factual nexus"

connecting Richards to other potential plaintiffs.
Being "very familiar with Eli Lilly's recruitment and promotion practices," Sweeney
described a company departure from strict promotion requirements in favor of an "early identified
talent" pilot program, which allowed managers "to bypass the competency model and promote
new employees with minimal or no experience" (Filing No. 42-3, ¶¶ 1–3) (emphasis added). This
departure started in or around 2012 and "gained momentum" over the next few years. Id., ¶ 3.
He explained biannual human resource planning meetings and that he witnessed how senior
Eli Lilly employees with hiring and promotional authority would "discredit and undermine" the
work of older employees being considered for promotions. Id., ¶ 10. Older employees he
supervised "often were singled out for criticism," even when he could attest to their excellent
performance, but younger and newer sales representatives "who [we]re not ready for promotions"
were often promoted. Id.

9

Sweeney's affidavit provides the specific example of a salesperson in their fifties whom he
personally supervised. Although the salesperson's identity is left undisclosed, the affidavit details
what happened when Sweeney recommended him for a stock grant, which is often considered a
"precursor[] to promotion[]." Id. One Sales Director (who subsequently became an Associate
Vice President) shot down the recommendation, called the salesperson lazy, and represented "he
had not performed to his maximum potential" "without having any firsthand knowledge about his
performance or work." Id. The director never observed him work nor cited any specific metrics
in this evaluation.
From this context, Sweeney indicates he is aware of at least twenty employees over the age
of forty "who are qualified for more senior sales representative roles, have expressed interest in
being promoted, and have not been promoted." Id. at 6. Given the totality of Richards' other
proffered evidence, including the sweeping picture painted by Sweeney's statements, it would be
at least reasonable to infer that these twenty individuals, personally known to him, suffered the
same or similar plight ("similarly situated") as Richards, Sosa, Oluoch, or the salesperson Sweeney
supervised. That is to say, some plan, policy or instruction linked Millennial employees to
promotions that these twenty or so older, more qualified individuals had "expressed interest" in
and, as an ultimate result, they were "not . . . promoted." Id. at 6. Adjudging the accompanying
theories and specifics of how that happened (or did not happen) is more proper at the second
decertification step. As noted earlier, the Court need not determine at this step whether, in practice,
the common plan, policy, or instruction played out over "perfunctory interview[s]" (Filing No. 424 at 4), like in Richards' case, or unsubstantiated negative exchanges dissecting older employees'
performance, like in the salesperson's case. This occurs at the more stringent second step. See
Duan, 2023 WL 5955911, at *1.

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2.

Common Policy or Plan Impacting Such Individuals

Defendants next argue that Richards identifies no evidence regarding a common or single
plan of discriminatory promotions (Filing No. 45 at 16).

They maintain that Eli Lilly's

organizational structure and discretionary policies used in evaluating employees for promotion,
and Richards' supporting affidavits do not establish a common thread linking the broad collective.
Defendants argue that Richards attempts "to identify such a common plan by discussing
the ECP initiative" and does not provide any specific facts to the contrary. Id. In discussing "the
ECP initiative", Defendants provide evidence in the form of a declaration by an Eli Lilly senior
vice president, Matthew “Kip” Chase. See id. (discussing Filing No. 45-1). The exhibits attached
to the declaration include an internal website page describing job paths and job levels (Filing No.
45-2), an excerpt of an April 2017 "People Strategy" presentation used during the 2017 town hall
meeting referenced in the collective action complaint (Filing No. 45-5), and a corresponding "PreRead" distributed in advance of the meeting to human resources personnel (Filing No. 45-6). In
essence, Defendants argue that the 2017 ECP initiative mentioned in the complaint could not have
served as the common plan, since it "was focused on hiring and advancement for entry-level
positions, not manager-level positions" like Richards' (Filing No. 45 at 16; see also Filing No. 451, ¶¶ 22, 24), and had its last hiring goal set in fiscal year 2020 (Filing No. 45 at 16–17; see also
Filing No. 45-1, ¶ 25).
Ignoring for a moment the fact that the Court does not make merits determinations, weigh
evidence, or specifically consider opposing evidence at this stage, Prater, 2022 WL 22285581, at
*2, the Court finds that this evidence, introduced by Defendants, seems to imply that the April
2017 presentation, and associated ECP hiring initiative which ensued, constitutes — full stop —
the entirety of the alleged "companywide age bias" that Richards seeks to put forth in this proposed
collective. But Richards does not pursue such a limited collective action.
11

Rather, in the Complaint itself, as well as in the motion and reply, Richards makes
substantial allegations, supported by detailed affidavits, that putative class members were together
victims of a policy or plan that "extended beyond the discriminatory hiring practices detailed in
the EEOC and Grimes lawsuits." (Filing No. 1 at 4) (emphasis added). For example, Sweeney
describes learning that a certain Sales Director (the same one involved in the previous salesperson
incident) "was following a directive from senior Elil Lilly leadership, including [the] CEO . . . and
Senior Vice President of Human Resources and Diversity . . . , to hire and promote Early Career
Professionals." (Filing No. 42-3 at 4) (emphasis added). He continues: "[P]romoting Early Career
Professionals even became part of our performance planning objectives."

Id.

Sweeney

straightforwardly assesses that, despite "claim[ing] to have a standardized hiring and promotion
process," "the company ignores this process when it comes to both hiring and promoting Early
Career Professionals, who are advanced quickly through the promotion process" "at the expense
of more qualified and older employees." Id. at 6.
Richards recounts her own experience and understanding of such policy or plan working
for Eli Lilly in Boston, Massachusetts. Among other things, she describes how an individual "in
her late 20s" was promoted to the district sales manager position instead of her and was "hired as
an S1 or S2 and … promoted to an S6 in just six years" (Filing No. 42-4 at 4, 5). These "rapid
promotions deviate sharply from Eli Lilly's professed Human Resource Planning Process and
'competency model' of promotion, which provides that it takes around three years at each 'S' level
before being promoted to the next 'S' level . . . ." Id. at 5. Finally, as discussed previously,
Richards' allegations are supported by affidavits of other individuals — one working in
Indianapolis, Indiana and one that worked previously in Florida — that detail individual
circumstances similar to those experienced by Richards. These showings together are sufficient

12

to demonstrate the existence of a "factual nexus" connecting "victims of an unlawful practice."
Berndt, 2013 WL 3287599, at *6.
The Court is not dissuaded by Defendants' insistence that Richards', Oluoch's, and Sosa's
circumstances are individualized occurrences. This would be to miss the forest for the trees.
Instead of undermining Richards' claim, the differences to which Defendants point (geographic
area, supervisors, and promotion evaluators) are details whose widespread variety might support
the allegations of an overarching — i.e., "companywide" (Filing No. 1 at 3) — plan, threading
together instances of age bias in promotion.
Defendants' arguments concerning the complexity of Eli Lilly's organizational structure
and the variance in discretionary policies used in evaluating employees for promotion are likewise
unavailing at this step. Richards alleges a common policy or plan of willfully promoting younger,
less qualified employees over older, more qualified employees. It is therefore the disadvantaged
employees' age, qualifications with regard to the relevant promotion, and status of being passed
over in favor of a younger and less qualified counterpart — and not per se their job functions, or
core business unit to which they belong, or the hiring criteria applied to the sought-after position
— that bind the proposed collective of employees. While Defendants may disagree as to the
relevance of the alleged variation in Eli Lilly hierarchy, the Court may not engage in making merit
determinations or weighing evidence at this stage, and therefore does not find the potential
differences between collective members to be disqualifying for purposes of authorizing notice.
See Prater, 2022 WL 22285581, at *2–3. Should further discovery reveal that some or all potential
plaintiffs are not in fact similarly situated or subject to a single common plan of discriminatory
promotions, then decertification may be appropriate.

13

All told, Richards has made a "modest factual showing" that she and potential plaintiffs
"together were victims of a common policy or plan that violated the law." In re New Albertsons,
Inc., 2021 WL 4028428, at *1. Therefore, the Court conditionally certifies this action.
B.

Proposed Notice
After conditionally certifying a collective action, the court may, at its discretion, authorize

notice to similarly situated employees. Horta v. Indy Transp., Inc., No. 1:20-cv-02659, 2021 WL
1667078, at *3 (S.D. Ind. Apr. 28, 2021). In doing so, the court maintains a "managerial
responsibility to oversee the joinder of additional parties to assure that the task is accomplished in
an efficient and proper way." Jirak, 566 F. Supp. 2d at 850 (quoting Hoffmann-LaRoche Inc. v.
Sperling, 493 U.S. 165, 170–71 (1989)).
Richards seeks leave to send the Notice and Opt-In Consent Forms by text, e-mail, and
U.S. Mail (see Filing No. 42 at 22). She also seeks a ninety-day opt-in period with a mail and email
reminder sent within forty-five days of the first notice. See id. at 22–23. To accomplish this notice
plan, Richards asks the Court to require Defendants to produce, within ten days from the date of
the order, a collective list for "all former and current Eli Lilly employees[] who have worked for
any period of time since February 12, 2022, to the present" (see Filing No. 41) to Richards' counsel.
Casting the net as wide as requested ("all former and current" employees) fails to preserve
Eli Lilly's privacy interests by requiring Defendants to relinquish the information of employees
who are ineligible to become opt-in plaintiffs. To match the certified collective more properly, the
Court limits the requested information that Eli Lilly is mandated to turn over to Richards to "all
former and current Eli Lilly employees who have worked for any period of time since February
12, 2022, to the present and were forty years of age or older when they were denied promotion."
Defendants further seek modifications to the notice and consent forms and have submitted
redline versions of each. Specifically, Defendants argue the forms should: (1) define the collective
14

and use congruent criteria to describe opt-in plaintiffs; (2) explain Eli Lilly can seek
decertification, which may result in the dismissal, and that opt-in plaintiffs are thus only potentially
members of any ultimate collective; (3) reference Richards' claims and Eli Lilly's defenses in a
more prominent paragraph disclaiming that the case is at an early stage; (4) advise potential optins that they may be required not only to provide evidence, but respond to discovery and testify at
trial; (5) inform potential opt-ins that they may share in liability for Eli Lilly's costs if Eli Lilly
prevails; and (6) inform potential opt-ins that they may contact Richards' counsel or an attorney of
their choice (Filing No. 45 at 32–33).
The Court agrees with some, but not all, of Defendants' proposed modifications. First,
Richards does not object specifically to Defendants' request that the forms define the collective
and use congruent criteria to describe opt-in plaintiffs. Without modification, the notice form in
particular would appear to apply to any employees over the age of forty considered for a
promotion, regardless of whether they were denied, or unqualified for, those same promotions.
Since the certified collective consists by its own terms of those employees over forty who were
denied promotions for which they were qualified, Defendants' modifications to the forms are
granted to the extent that they incorporate the missing necessary elements. Considering these
changes, the sentence in the notice now reads in relevant part: "According to the company's
records, you were forty (40) years of age or older and were denied a promotion for which you were
qualified on or after February 12, 2022, and are therefore eligible to . . . ."
C.

Defendants Motion to Strike Opt-In and Consent Form
Even with Defendants' proposed modification, the language in the consent form does not

match the collective's breadth. After briefing the motion for conditional certification, Richards
filed a "notice of consent to opt-in" to the claims in the case (see Filing No. 56; Filing No. 56-1),
which is the subject of Defendants' Motion to Strike. In relevant part, the consent, signed by affiant
15

Sweeney, removes the statements that the undersigned "applied for a promotion at Eli Lilly" and
Eli Lilly denied the application, both of which were found in the previous consent form (see Filing
No. 42-2). In lieu of these indications, Sweeney's consent form instead states he was "passed over
for a promotion by Eli Lilly in favor of a younger employee in approximately" October 2022
(Filing No. 56-1). The added language, which parallels that found in Oluoch's affidavit, squarely
fits within a theory of the case promoted by Richards (see Filing No. 1, ¶¶ 1, 23). For such reasons,
and taking into account the collective which the Court has certified above, the Court finds that the
altered language in Sweeney's consent fulfills 29 U.S.C. § 216(b)'s requirement that any party
plaintiff shall "give[] consent in writing to become [] a party."
Considering such observations, as well as the proposed modifications which assist in
determining the relevant timeline, the consent form to be sent to opt-in plaintiffs is changed to now
read in relevant part:
On or about
(month/date), I applied or was considered for a promotion at Eli
Lilly. Eli Lilly denied my application or passed me over for a promotion in favor of a
younger employee on
(month/date). At the time I applied for the promotion, I
was a
(title, role, division). At the time my application was denied or I was
passed over for promotion, I was
years old. The promotion(s) I had applied
to/did not receive was to the position(s) of
(title(s), role(s), division(s)). I
believe I was qualified for the role and was passed over for a less qualified, younger
applicant.
In light of these and other changes, the Court grants Defendants' Motion to Strike (Filing
No. 58), Sweeney's consent form (Filing No. 56-1), but Richards is granted leave to file an
amended consent form for Sweeney that is consistent with this Entry.
Next, when it comes to Defendants' proposed modification concerning Eli Lilly's possible
decertification and effect on opt-in plaintiffs, the Court finds the addition of such an explanation
unnecessary. At present, a prominent paragraph indicates that the case "is at an early stage" and
there has not been a decision on the merits or settlement (Filing No. 42-1 at 2). Later on, it is further
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explained that opt-in plaintiffs "will be bound by any ruling or settlement in this case." Id.
Together, these disclaimers satisfactorily place potential plaintiffs on notice that they will be bound
by rulings to come at later stages. The Court finds that spelling out the possibilities or effects
therein as stated in the second paragraph of Exhibit 6 is appropriate. (See Filing No. 45-11 at 2).
The Court finds Defendants' request that the proposed notice include language regarding
the potential consequences of joining the case and the prospect of participation in discovery and
at trial to be a fair suggestion. See Knox v. Jones Grp., 208 F. Supp.3d 954, 966 (S.D. Ind. 2016)
("Plaintiffs' notice . . . is approved with the addition of a phrase that 'a class member may be subject
to obligations such as responding to discovery, giving a deposition, and testifying at trial' in the
'What happens if I join the lawsuit?' section."), on reconsideration in part, 2016 WL 6083526
(S.D. Ind. Oct. 18, 2016); see also Carrel v. MedPro Grp., Inc., 2017 WL 1488359, at *11 (N.D.
Ind. Apr. 26, 2017) ("However, the class members may be subject to discovery, including
depositions, to determine their individualized damages. Accordingly, revisions to include
reference in the Notice to this impeding discovery are warranted.").
Richards should also acknowledge the consequences of an unfavorable result. See Hayes
v. Thor Motor Coach, Inc., 502 F. Supp. 3d 1342, 1353, 2020 WL 5217388 (N.D. Ind. 2020).
Although § 216(b) is silent regarding the court's authority when the defendant is the prevailing
party, at least one circuit court has held that the statute does not prevent prevailing defendants from
seeking an award of costs under Federal Rule of Civil Procedure 54(d). See Lochridge v. Lindsey
Mgmt. Co., 824 F.3d 780, 782–83 (8th Cir. 2016); see also E.E.O.C. v. O & G Spring & Wire
Forms Specialty Co., 38 F.3d 872, 883 (7th Cir. 1994) ("Congress must be presumed to know,
upon incorporating the FLSA into the ADEA, that in the absence of a specific provision, prevailing
defendants would not be able to recover fees absent a showing of bad faith. By explicitly changing

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this rule with respect to plaintiffs but remaining silent with respect to defendants, the most sensible
reading is that the FLSA and the ADEA adopt the common law rule with respect to prevailing
defendants."). It only seems prudent to advise future plaintiffs of their responsibilities and
potential consequences if they join, so long as the language does not unfairly dissuade possible
plaintiffs from joining. The Court finds that Defendants' proposed language does not run this risk.
The forms shall be modified accordingly.
Lastly, Defendants request that the opt-out period should be reduced from Richards'
proposed ninety days to sixty days. A period of seventy-five days is a reasonable compromise.
The notice shall be modified accordingly. Defendants further argue the Court should not authorize
reminder notices, which they contend are unnecessary and "could be interpreted as encouragement
by the Court to join the lawsuit" (Filing No. 45 at 33 (quoting Smallwood v. Ill. Bell Tel. Co., 710
F. Supp. 2d 746, 753–54 (N.D. Ill. 2010)). However, such concerns are uncompelling, given that
the second notice will be disseminated by Richards' counsel, not the Court. That aside, since the
individual is not part of the collective in an FLSA action unless he or she opts-in, this court has
previously recognized a second notice or reminder is appropriate. See, e.g., Slack v. Xcess, Inc.,
2020 WL 12738895, at *3 (S.D. Ind. July 9, 2020); Knox, 208 F. Supp. 3d at 964–65. The Court
therefore authorizes Richards to send a second notice, identical to the first, forty-five days after
the issuance of the first notice to all individuals who have not yet opted-in to this matter.
The Court has considered Defendants' remaining objections, as well as the other suggested
redlined changes, and overrules them. They are largely stylistic suggestions concerning the
language included in the notice or are otherwise unnecessary. The Court will not engage in a
wholesale rewrite of Richards' proposed notice form, as collective action plaintiffs should be
allowed to use the language of their choice in drafting the communication to other prospective

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collective members. See King v. ITT Continental Baking Co., 1986 WL 2628, at *3 (N.D. Ill. Feb.
18, 1986) (Rovner, J.).
III. CONCLUSION
Richards has met her step one burden to certify her ADEA claims as a conditional
collective action under the FLSA. Her Motion for Conditional Certification and Issuance of Notice
and Opt-In Form (Filing No. 41) is GRANTED. Eli Lilly's Motion to Strike (Filing No. 58) is
GRANTED, and Filing No. 56-1 is stricken. Richards is granted leave file a new a consent form
for Sweeney that is consistent with this Order.
The notice and opt-in consent forms are limited in accordance with this Order. Because
Richards must revise these forms before they can be sent, the Court ORDERS her to file within
fourteen (14) days of the date of this Order supplemental notice and opt-in consent forms, as
well as a proposed order granting leave to send them.

Absent any unforeseen issues or

unconsidered additions, the Court intends to grant the proposed order and allow notice to proceed.
Thus, new objections by Defendants, if any, are not to exceed three pages and are due seven (7)
days after Richards' submission.
Additionally, the Court ORDERS Defendants to share the requested contact
information with Richards' counsel within twenty-one (21) days of the date of this Order for
all former and current Eli Lilly employees who have worked for any period since February 12,
2022, to the present and were forty years of age or older when they were denied promotion.
SO ORDERED.
Date:

3/25/2024

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DISTRIBUTION:
Harold Lichten
LICHTEN & LISS-RIORDAN
[e-mail]
Jane Farrell
LICHTEN & LISS-RIORDAN PC
[e-mail]
Jeffrey A. Macey
MACEY SWANSON LLP
[e-mail]
Matthew Patton
LAW OFFICE OF NICHOLAS F. ORTIZ P.C.
[e-mail]
Thomas Fowler
LICHTEN & LISS-RIORDAN, P.C.
[e-mail]
Jacob Wentzel
JENNER & BLOCK LLP
[e-mail]
Joanna Wright
JENNER & BLOCK LLP
1155 Avenue of the Americas
New York, NY 10036
Joseph Torres
JENNER & BLOCK LLP
[e-mail]
Katherine Funderburg
JENNER & BLOCK LLP
[e-mail]

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