Behr v. AADG, Inc
Filing
28
MEMORANDUM Opinion and Order granting 15 Motion to Certify Class and Court Authorized Notice. Court certified notice shall be modified (See Order Text). The parties shall submit a proposed scheduling order and discovery plan for the remainder of this case on or before 11/16/2015. Signed by Magistrate Judge Leonard T Strand on 10/6/2015. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
DENNIS BEHR, and Employees
Similarly Situated to Him,
No. C14-3075-LTS
Plaintiff,
vs.
MEMORANDUM OPINION AND
ORDER ON PLAINTIFF’S MOTION
AADG, INC., d/b/a Curries,
FOR CONDITIONAL CLASS
CERTIFICATION AND COURT
Defendant.
AUTHORIZED NOTICE
____________________
I.
INTRODUCTION
Plaintiff Dennis Behr (Behr) filed this action against AADG, Inc., d/b/a/ Curries
(AADG), on November 21, 2014, alleging a violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq. This case has been referred to me
with the consent of the parties for the conduct of all further proceedings and entry of
judgment in accordance with 28 U.S.C. § 636(c). Doc. No. 10.
Behr has filed a motion (Doc. No. 15) for conditional class certification and court
authorized notice, along with a proposed notice (Doc. No. 15-4). AADG has filed a
resistance (Doc. No. 20) and Behr has filed a reply (Doc. No. 22).1 While Behr has
requested oral argument, I find that the issues have been sufficiently briefed by both sides
so as to render oral argument unnecessary. See N.D. Ia. L.R. 7(c).
The motion is
fully submitted and ready for decision.
1
After the motion was fully briefed, I granted Behr’s unresisted motion for leave to file an
amended complaint. Doc. No. 24. The amended complaint, and Currie’s answer to the amended
complaint, have now been filed. Doc. Nos. 25, 26. Neither party has argued that the amended
pleading has any impact on the present motion.
II.
RELEVANT FACTUAL BACKGROUND
On February 6, 2014, AADG implemented a reduction in force (RIF) plan to cut
$1.4 million in indirect personnel expenses at its plant in Mason City, Iowa. Behr was
one of 14 employees laid off as part of the RIF. Thirteen of those 14 employees were
over the age of 40 at the time of the RIF. This group of 13 former employees is the class
Behr seeks to certify.
By agreement, and with this court’s consent, the parties engaged in limited
discovery concerning class certification issues. Doc. No. 11. In support of his motion,
Behr has submitted certain of AADG’s answers to interrogatories, along with affidavits
from three members of the potential class: Dale Glen, Ronald White and Glenn Willier.
Doc. Nos. 15-1, 15-2, 15-3 and 19. Glen states that he was a 51 year-old manufacturing
engineer at the time of the RIF and that his position was not actually eliminated. Instead,
he states that he was replaced by a new, younger employee, approximately 25 years-old.
White states that he was a 67 year-old shipping manager at the time of the RIF and
that his job duties were assumed by a younger, less-experienced employee. He also states
that shortly before the RIF, he was asked by AADG’s director of human services if he
was planning to retire soon. According to White, he responded by stating that he did not
plan to retire.
Willier states that he was a 65 year-old maintenance mechanic at the time of the
RIF and that he was the oldest maintenance mechanic in the maintenance department. He
also states that shortly before the RIF, he had made arrangements with AADG under
which he would begin to work a reduced schedule, but never had the opportunity to work
under that reduced schedule before the RIF. Willier states that all of the maintenance
mechanics who were younger than him retained their jobs after the RIF.
In support of its resistance, AADG has submitted (a) certain other of its answers
to interrogatories, (b) the affidavit of Vicki Gordon, its director of human resources, and
(c) various records.
Doc. No. 21-1, 21-2.
2
In her affidavit, Gordon states that
approximately 175 employees were eligible for inclusion in the RIF. Doc. No. 21-2 at
2. AADG’s records show that only 26 of those employees, or about 15%, were under
the age of 40 when the RIF occurred. Doc. No. 21-4. Gordon states that the employees
chosen for discharge were selected for a variety of reasons, including the elimination of
their positions, their stated intentions concerning retirement, performance issues and
status as part-time employees. Doc. No. 21-2 at 2. According to Gordon, each affected
employee was notified of his or her termination on February 17, 2014, and all signed
agreements entitled “Separation Agreement, General Release and Covenant Not to Sue.”
Id.
III.
A.
DISCUSSION
Conditional Class Certification
1.
Applicable standards
The ADEA allows an employee to bring an action on his or her own behalf and
on behalf of other employees similarly situated to enforce the provisions of the ADEA.
29 U.S.C. §§ 216(b), 626(b); Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 167
(1989). Unlike the typical class action suit governed by the Federal Rules of Civil
Procedure, “plaintiffs wishing to sue as a class under [the] ADEA must utilize the opt-in
class mechanism provided in 29 U.S.C. § 216(b).” Hipp v. Liberty Nat. Life Ins. Co.,
252 F.3d 1208, 1216 (11th Cir. 2001). “[O]nce an ADEA action is filed, the court has
a managerial responsibility to oversee the joinder of additional parties to assure that the
task is accomplished in an efficient and proper way.” Hoffman-La Roche, 493 U.S. at
171. The court must exercise its discretion to facilitate notice to potential plaintiffs while
avoiding the “‘stirring up’ of litigation through unwarranted solicitation.” Bouaphakeo
v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 890 (N.D. Iowa 2008) (quoting Severtson v.
Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991)).
3
Section 216(b) does not define when plaintiffs are “similarly situated.” Id. A
majority of federal courts, including this court, have utilized a two-step approach to
address this issue. Id. at 891. Here, neither party advocates a different approach. Thus,
I will apply the two-step analysis to this case.
The two-step approach distinguishes between conditional class certification and a
final class certification. Id. Conditional certification is generally completed at the notice
stage, when only limited discovery has taken place, and applies a lenient standard to
determine whether the potential plaintiffs are similarly situated. Id. The second step,
final certification, is addressed after notice, discovery and the time for opting-in has
occurred. Id. At that time a “substantial record has been amassed,” which allows the
court to make a factual determination. Campbell v. Amana Co., L.P., No. C99–75 MJM,
2001 WL 34152094, *at 2 (N.D. Iowa Jan. 4, 2001). The standard for whether the optin plaintiffs are “similarly situated” at the second stage is stricter than it is at the first
stage. Bouaphakeo, 564 F. Supp. 2d at 890.
At the initial stage, the plaintiff must provide “some factual basis from which the
court can determine if similarly situated potential plaintiffs exist.” Id. at 892 (quoting
Salazar v. Agriprocessors, Inc., No. 07–CV–1006–LRR, 2008 WL 782803, at *5 (N.D.
Iowa March 17, 2008) (in turn quoting Dietrich v. Liberty Square, L.L.C., 230 F.R.D.
574, 577 (N.D. Iowa 2005)). Under this standard, conditional certification “requires
nothing more than substantial allegations that the putative class members were together
the victims of a single decision, policy or plan.” Id. (quoting Young v. Cerner Corp.,
503 F. Supp. 2d 1226, 1229 (W.D. Mo. 2007) (in turn quoting Davis v. NovaStar Mortg.,
Inc., 408 F. Supp. 2d 811, 815 (W.D. Mo. 2005)). A plaintiff need only make a modest
factual showing at the first stage because there has been limited discovery. Dietrich v.
Liberty Square, L.L.C., 230 F.R.D. 574, 577 (N.D. Iowa 2005). Since the standard at
the first step is lenient, conditional certification is “generally granted.” Campbell, 2001
WL 34152094, at *2.
4
Even at this initial stage, however, some evidence is required. The plaintiff must
show that similarly situated persons exist and want to opt-in. Bouaphakeo, 564 F. Supp.
2d at 892.
“Unsupported assertions of widespread violations are not sufficient.”
Evancho v. Sanofi-Aventis U.S. Inc., No. 07-2266, 2007 WL 4546100 at 2 (D.N.J. 2007)
(citing Freeman v. Wal-Mart Stores, Inc., 256 F. Supp. 2d 941, 945 (W.D. Ark. 2003)).
A court may deny conditional classification if the action “arises from circumstances
purely personal to the plaintiff, and not from any generally applicable rule, policy, or
practice.” Aguirre v. SBC Communications, Inc., No. H-05-3198, 2007 WL 772756, at
*9 (S.D. Texas Mar. 12, 2007) (internal citations omitted). Courts consider factors such
as “whether affidavits of potential plaintiffs have been submitted, whether there is
evidence of a widespread discriminatory plan, and whether, as a matter of sound
management, a manageable class exists.” Bouaphakeo, 564 F. Supp. 2d at 892 (internal
citations omitted).
2.
Analysis
I first must determine whether this case is still at the notice stage, has reached the
second stage, or is somewhere in between. When only limited discovery has occurred
and the plaintiff is requesting only conditional certification, it is more equitable to begin
with a first-step analysis. Bouaphakeo, 564 F. Supp. 2d at 894. The ADEA has a
remedial purpose, and a lenient standard for conditional class certification facilitates that
purpose. Jackson v. New York Telephone Co., 163 F.R.D. 429, 432 (S.D.N.Y. 1995).
Here, the parties clearly intended that this would be a stage one analysis. On
February 23, 2015, they filed a joint motion (Doc. No. 9) for entry of a scheduling order
in which they proposed a two-stage discovery process, with stage one being “limited to
issues concerning conditional certification” and stage two being discovery “encompassing
the merits of the case.” Doc. No. 9 at 2. I granted the motion by order (Doc. No. 11)
filed February, 24, 2015, thus establishing a deadline for “discovery regarding class
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certification” and deadlines for briefing plaintiff’s motion for conditional class
certification. By design, this case is at stage one of the two-stage class certification
process.
As noted above, at this stage the plaintiff need only produce some evidence that
the potential plaintiffs were victims of a common policy or plan that violated the law to
show that they are similarly situated. Campbell, 2001 WL 34152094, at *2. “The more
stringent factual inquiry as to whether the plaintiffs are ‘similarly situated’ is made only
after a more substantial record has been amassed.” Id. In resisting Behr’s motion,
AADG contends that conditional certification should be denied because the court will be
required to conduct a fact-intensive inquiry into each potential plaintiff’s individual
situation to determine whether they are similarly situated. Doc. No. 21 at 6. AADG
relies on Aguirre and Evancho to argue that factual differences between the potential
plaintiffs, such as their positions and salaries, may require denial of conditional
certification. Neither case is on point.
Aguirre and Evancho addressed claims relating to employment status and benefits
under the Fair Labor Standards Act (FLSA). The question of whether a particular
employee was entitled to certain benefits turned on whether that employee was exempt
or nonexempt under the FLSA. Aguirre, 2007 WL 772756, at *10; Evancho, 2007 WL
4546100, at *3. In each case, the court denied conditional certification because of this
individualized inquiry.
The situation here is different. Behr alleges a single discriminatory policy or plan
– AADG’s implementation of the RIF. While the RIF distinguished between essential
and non-essential employees, the individual job titles, duties and salaries are not
fundamental in deciding whether the plaintiffs are protected by the ADEA. “It is
unnecessary to show that putative class members share identical positions.” Schwed v.
General Elec. Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995). Differences in the plaintiffs’
factual situations may lead to a denial of classification at some point, but those differences
6
are more likely to be determinative at the second stage of the analysis. See Brooks v.
BellSouth Telecommunications, Inc., 164 F.R.D. 561, 568 (N.D. Ala. 1995). Indeed,
some courts have held that the mere allegation of discrimination in the implementation of
a RIF is enough to satisfy the lenient first step burden. See, e.g., Wilkerson v. Martin
Marietta Corp., 875 F. Supp. 1456, 1461 (D. Col. 1995). “In this regard, the allegation
of discrimination by [plaintiffs] transcends the differences existing among levels of
management responsibility . . . [and] employment in different divisions or operating
units.” Id.
AADG argues that although all the plaintiffs are within the protected age group
and were terminated as part of the RIF, in order to prove the prima facie elements of the
case they would each have to show age was a determining factor in their termination and
that their job was given to someone younger. 2 AADG claims that this factual analysis is
so individualized that the potential plaintiffs cannot be similarly situated. AADG also
argues that there is no evidence of discriminatory intent, another prima facie element.
Further, AADG notes that if the plaintiffs establish a prima facie case, AADG would
have to produce individual defenses for each plaintiff.
At this preliminary stage, there must be a factual nexus binding the named plaintiff
and potential class members together “as victims of a particular practice.” Jenkins v.
TJX Companies Inc., 853 F. Supp. 2d 317, 322 (E.D.N.Y. 2012). The named plaintiff
must reasonably describe the potential class to allow the court to decide whether similarly
situated potential plaintiffs exist. Id. (citing Schwed v. Gen. Electric Co., 159 F.R.D.
Curries also argues that because each plaintiff signed a Separation Agreement, which
included a release and a covenant not to sue, the court should not grant conditional class
certification. Again, I find this argument to be premature. Curries will bear the burden of
proving that the waivers were obtained in compliance with the Older Workers Benefits
Protection Act. See 29 C.F.R. § 1625.22(h). Curries is free to seek the dismissal of
individual, opt-in plaintiffs based on their execution of Separation Agreements. I agree with
Behr, however, that the existence of those Agreements does not prevent conditional class
certification.
2
7
373, 375-76 (N.D.N.Y. 1995)). The factors to consider are “whether affidavits of
potential plaintiffs have been submitted, whether there is evidence of a widespread
discriminatory plan, and whether, as a matter of sound management, a manageable class
exists” as well as whether potential plaintiffs have been identified and if there is evidence
that similarly situated individuals want to opt-in. Bouaphakeo, 564 F. Supp. 2d at 892
(internal citations omitted).
Here, Behr has identified 12 additional, potential plaintiffs. Three have indicated
they are willing to opt-in to the class. A total class size of 13 (or less) is manageable.
Moreover, all of the potential plaintiffs, despite having a variety of positions, were
discharged from the same plant at the same time, as part of the same RIF plan. Behr has
submitted affidavits indicating that all but one of the employees discharged were over the
age of 40 and that their positions were given to younger employees or their duties were
assumed by younger employees.
The evidence AADG submitted to show that it did not discriminate based on age
is directly more properly to the merits of the case. Under the lenient standard of the
first-stage analysis, and in light of Behr’s submission of evidence that provides a
“colorable basis” for finding that the potential plaintiffs were victims of a discriminatory
plan, I will grant Behr’s request for conditional class certification.
B.
Court Authorized Notice
1.
Applicable standards
As part of a federal court’s authority to manage the cases before it, the court may
supervise the notification process. Martinez v. Cargill Meat Solutions, 265 F.R.D. 490,
499 (D. Neb. 2009) (citing Hoffman-La Roche, 493 U.S. 165, 170 (1989)). Notice must
be timely, accurate and informative so the potential plaintiffs have a chance to make an
informed decision about whether they want to participate. Id. The court must avoid
appearing to endorse the merits of the claim. Id. However, because the notice represents
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a communication from the plaintiff to other possible class members, the court should not
alter the proposed notice unless it is necessary. Id. Thus, the court should also not
change the plaintiff’s proposed notice unless there is reasonable objection from the
defendant or the court itself. Littlefield v. Dealer Warranty Services, LLC, 679 F. Supp.
2d 1014, 1018 (E.D. Mo. 2010); King v. ITT Continental Baking Co., No. 84 C 3410,
1986 WL 2628, at *3 (N.D. Ill. 1986).
The notice to potential plaintiffs should include information such as a brief
identification of the action, any fees and expenses the class members may have to pay,
how many individuals have already signed consent forms (if any), a statement indicating
the court has expressed no opinion on the merits, a statement that the individual is not
obligated to join the action and a statement that if the individual opts-in then he or she
will be bound by the results. Krueger v. New York Tel. Co., No. 93 CIV. 0178, 1993
WL 276058, at *3 (S.D.N.Y. 1993).
2.
Analysis
AADG presents three objections to Behr’s proposed notice (Doc. No. 15-4). First,
AADG requests that the word “alleged” be added to the first sentence of the notice,
meaning the relevant portion of that sentence would read: “we have brought an action
seeking compensation for alleged damages arising out of employment terminations. . . .”
AADG argues that omitting the word “alleged” improperly suggests that a right to
recover damages has already been determined.
Second, AADG claims the second
sentence of the third paragraph is not complete and that the phrase “may also be entitled
to compensation” suggests that the court has already decided that Behr is entitled to
compensation.
Third, AADG asks for a clarification of the phrase “any expenses
incurred by the law firm” to disclose that any individual who opts-in will be responsible
for a portion of attorney fees.
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With regard to AADG’s first objection, the second sentence of the proposed notice
advises the reader that “[t]he court has expressed no opinion on the merits of the case.”
I find that this clearly and properly notifies the potential plaintiffs of the fact that no
determination has been made as to whether any award of damages is appropriate. The
first paragraph does not unfairly prejudice AADG.
As for AADG’s second objection, I agree that the third paragraph should be
revised as AADG requests. The second sentence of that paragraph is confusing because
of its (probably inadvertent) inclusion of the word “and” and its suggestion that Behr has
already been found to be entitled to compensation. The third paragraph should be
replaced with the following:
The plaintiff in this action claims that AADG, through a company
“Reduction in Workforce” plan, selected him for termination because of
his age, and that he is therefore entitled to compensation. We are sending
you this notice because you were terminated as part of the 2014 “Reduction
in Workforce” plan, and you therefore may choose to join this lawsuit and,
if the lawsuit is successful, may be entitled to compensation.
With regard to AADG’s third objection, I agree that the fifth paragraph of the
notice should include a disclosure about the attorney fee obligations that a potential
plaintiff would assume if he or she opts into the class. While this disclosure need not be
detailed, it should alert the potential plaintiffs to the circumstances under which they may
be required to pay attorney fees. I will leave it to Behr’s counsel to prepare a draft of
appropriate language for review by AADG’s counsel. If counsel are able to agree on
that language, the notice may be sent without the need for further approval by the court.
If counsel are not able to reach agreement, they may contact my chambers to schedule a
telephone conference on an expedited basis.3
3
The same is true with regard to the deadlines that will be set forth in the final paragraph of the
notice. Behr’s counsel shall propose appropriate deadlines for review and approval by AADG’s
counsel. The parties may seek the court’s assistance if necessary.
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IV.
CONCLUSION
For the reasons set forth herein, Behr’s motion (Doc. No. 15) for conditional class
certification is granted. However, the notice proposed by Behr (Doc. No. 15-4) shall
be modified as set forth above.
The parties shall submit a proposed scheduling order and discovery plan for the
remainder of this case on or before November 16, 2015.
IT IS SO ORDERED.
DATED this 6th day of October, 2015.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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