Raymond et al v. Spirit AeroSystems Holdings, Inc. et al
Filing
1115
MEMORANDUM AND ORDER granting 1035 Motion for Final Certification of a Collective Action; granting 1036 Motion to Exclude; granting in part and denying in part 1037 Motion to Exclude; granting 1040 Motion for Partial Summary Judgment; den ying as moot 1042 Motion to Exclude; granting 1043 Motion to Exclude; denying 1044 Motion to Strike; denying as moot 1046 Motion to Exclude; granting 1090 Motion to Strike. See Order for further details. Signed by District Judge John W. Broomes on 5/16/2023. (sz)
Case 6:16-cv-01282-JWB Document 1115 Filed 05/16/23 Page 1 of 83
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONETTA RAYMOND, et al.,
Plaintiffs,
v.
Case No. 16-1282-JWB
SPIRIT AEROSYSTEMS HOLDINGS, INC.,
and SPIRIT AEROSYSTEMS, INC.,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Plaintiffs’ motion (Doc. 1035) for final certification of a
collective action under the Age Discrimination in Employment Act (ADEA), and on numerous
motions from Defendants, including a motion to strike or decertify the collective action claims
(Doc. 1044), a motion for partial summary judgment on those claims (Doc. 1040), five Daubert
motions to exclude testimony of witnesses (Docs. 1036, 1037, 1042, 1043, 1046), and a motion to
strike testimony (Doc. 1090). The motions are fully briefed and are ripe for decision. For the
reasons stated herein, the court grants Plaintiffs’ motion for certification of a collective action
(Doc. 1035), denies Defendants’ motion to decertify (Doc. 1045), rules on the Daubert motions as
indicated herein, and grants Defendants’ motion for partial summary judgment (Doc. 1040) on
Plaintiffs’ collective ADEA claims.
Case 6:16-cv-01282-JWB Document 1115 Filed 05/16/23 Page 2 of 83
I. Background
The case arises from a 2013 reduction-in-force (“RIF”) at Spirit Aerosystems, Inc.
(“Spirit”). As part of a company-wide effort to reduce costs, Spirit laid off 271 employees from
its manufacturing facility in Wichita, Kansas, where it employed more than 4,000 workers. The
Society of Professional Engineering Employees in Aerospace (“SPEEA”) represents two separate
bargaining units – the Wichita Engineering Unit (WEU) and Wichita Technical and Professional
Unit (WTPU) – both with their own collective bargaining agreement (“CBA”) with Spirit.
Plaintiffs were Spirit employees in Wichita represented by SPEEA who lost their jobs in the
layoffs. After the layoffs, some Plaintiffs tried to get rehired into positions at Spirit but were not
rehired.
Plaintiffs allege that in 2013, new CEO Larry Lawson began focusing on cutting labor
costs and that Spirit “falsely claimed … that past tolerance of poor performance required tightening
of performance standards.” (Doc. 1034 at 7.) Lawson decided to implement Spirit’s first-ever mass
layoff and Spirit allegedly sought to eliminate “more expensive (older, sicker, and those who took
leave) workers.” (Id. at 7.) To achieve this, Spirit allegedly changed its annual performance
evaluation [“PM”] process to “focus on older and sicker workers to protect the younger workforce
from the layoff” by mandating a 15-70-15 distribution in performance evaluations and by using a
“calibration” process to “tighten” the standards. (Id. at 7-8.) Then, prior to the layoffs, Spirit
conducted a retention ranking exercise as allowed under the CBAs, under which Spirit ranked
SPEEA represented employees in one of three categories: A (the highest, most likely to be
retained), B, or C (the lowest, least likely to be retained), pursuant to a 70-20-10 distribution
mandated by the CBAs. Plaintiffs contend Spirit “manipulated” the CBAs by depriving longserving employees of a “bump” in retention ranking and by not requiring new employees to be
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ranked. Plaintiffs also note that Spirit changed to self-funded health insurance in 2013 and
contends the company targeted older workers with higher health care claim costs in the layoff. (Id.
at 8-9.)
Plaintiffs also claim Spirit discriminated against them in rehiring based on age. After the
layoff, Spirit held various job fairs to hire for a number of positions. Plaintiffs claim Spirit
“excluded virtually all Plaintiffs from being rehired” by placing previously laid-off worker
applications in a pool that precluded the applicants from being considered. Plaintiffs assert that
their statistical expert found, among other things, that “applicants 40 and over had only 76% the
odds of a successful screening as under 40 applicants.” (Id. at 12.)
Various subgroups of Plaintiffs assert claims under three statutes: the ADEA, 29 U.S.C. §
621; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112; and/or the Family Medical
Leave Act (FMLA), 29 U.S.C. § 2615. The three main statutory claims are further divided into
“termination” and “failure-to-rehire” claims, with some Plaintiffs asserting only terminationrelated claims, some asserting only failure to rehire claims, and some asserting both. Additionally,
the claims are divided into disparate treatment and/or disparate impact theories. Plaintiffs assert
the ADEA claims both collectively and individually. With respect to the collective ADEA claims,
Plaintiffs allege a “pattern or practice” of age discrimination on Defendants’ part. A few Plaintiffs
also assert individual retaliation claims.
In the pretrial order, Plaintiffs “assume that this case will be tried initially as a collective
action, with initial consideration of Plaintiffs’ pattern or practice and disparate impact collective
action claims, pursuant to the requirements set forth in Int’l Bhd. Of Teamsters v. United States,
431 U.S. 324, 334-35 (1977).” (Doc. 1034 at 1.) In the “event of decertification or dismissal of
any of the collective action claims, Plaintiffs request the Court’s permission to amend the pretrial
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order.” (Id. at 2.) For their part, Defendants “dispute that this case may be tried as a pattern-orpractice case” and say any request to amend the pretrial order can be addressed after the court rules
on the current motions.1 (Id.)
The result of all this is a somewhat dizzying array of claims and parties, set forth by
Plaintiffs in a table in the pretrial order, and summarized by them as follows:
1. Collective Termination claim under the ADEA and Teamsters alleging disparate
impact.2 (15 plaintiffs)
2. Collective Termination claim under the ADEA alleging disparate treatment
pattern or practice (15 plaintiffs).
3. Collective Hiring claim under the ADEA alleging disparate treatment pattern or
practice (51 plaintiffs).
4. Individual termination claims under the ADEA alleging disparate impact (15
plaintiffs).
5. Individual termination claims under the ADEA alleging disparate treatment (15
plaintiffs).
6. Individual hiring claims under the ADEA alleging disparate treatment (51
plaintiffs).
7. Individual termination claims under the ADA alleging discriminatory disparate
treatment (3 plaintiffs).
8. Individual termination claims under the FMLA alleging retaliatory termination
(2 plaintiffs).
9. Individual hiring claims under the ADA alleging discriminatory disparate
treatment (11 plaintiffs).
1
If Plaintiffs do not prevail on the first stage of their pattern-or-practice claims, they are nevertheless entitled to
proceed on their individual claims. Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1106 n.8 (10th Cir. 2001) (citing
Cooper v. Fed. Reserve Bank of Richmond, 467 U.S.867, 878 (1984) (“It could not be more plain that the rejection of
a claim of classwide discrimination does not warrant the conclusion that no member of the class could have a valid
individual claim.”). The individual claims proceed under the normal McDonnell Douglas framework, rather than
benefitting from a presumption of discrimination. Id.
2
Defendants object to the inclusion of this claim in the pretrial order, asserting it has no counterpart in the First
Amended Complaint (Doc. 522), and arguing Teamsters does not address disparate impact claims. (Doc. at 23 n.3.)
The court will address the disparate impact issue on summary judgment.
4
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10. Individual hiring claims under the FMLA alleging retaliatory failure to hire (5
plaintiffs)
11. Individual termination claims under the ADA alleging discriminatory disparate
impact (3 plaintiffs).
12. Individual hiring claims under the ADA alleging discriminatory disparate
impact (11 plaintiffs).
(Doc. 1034 at 22.) Defendants respond with a table of their own listing thirty-one defenses and
showing the Plaintiffs and claims as to which each defense is asserted. (Id. at 23-32.)
There are a number of pending motions, including motions relating to certification of
collective claims under the ADEA (Docs. 1035, 1044), Daubert motions to strike or limit expert
testimony (Docs. 1036, 1037, 1042, 1043, 1046, 1090), and Spirit’s motion for partial summary
judgment, which seeks judgment on the collective claims (Doc. 1040).
The court sought input from the parties on the sequence in which the motions should be
decided. That request produced no consensus. (Doc. 1034 at 42-43.) The court concludes the most
efficient manner of addressing the motions is to first address the question of certification, and then
to proceed to the summary judgment motion, addressing the Daubert motions within the context
of summary judgment as necessary.
The Supreme Court recognized a format for adjudicating “pattern or practice”
discrimination claims in Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). Under such
a claim, the plaintiff has the “initial burden to demonstrate that unlawful discrimination has been
a regular procedure or policy followed by an employer….” Id. at 360. “At the initial, ‘liability’
stage of a pattern-or-practice suit the [plaintiff] is not required to offer evidence that each person
for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy.” Id.
Rather, its burden is to establish a prima facie case that such a policy existed, after which the
burden shifts to the employer to demonstrate that the plaintiff’s “proof is either inaccurate or
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insignificant.” Id. If the employer fails to do so, the court may conclude that a violation has
occurred and determine an appropriate remedy. If individual relief for victims is sought, “a district
court must usually conduct additional proceedings after the liability phase of the trial to determine
the scope of individual relief.” Id. Proof of a pattern or practice of discrimination supports an
inference during this “remedial stage” that any particular employment decision was made in
furtherance of the discriminatory policy, with the plaintiff only needing to show that an individual
suffered an adverse employment action, and with the burden then on the employer to show there
were lawful reasons for the action. See id. at 362. In other words, if the plaintiffs prevail in the
first stage of trial, they “reap a significant advantage for purposes of the second stage: they are
entitled to a presumption that the employer … discriminated against them.” Apsley v. Boeing Co.,
691 F.3d 1184, 1194 (10th Cir. 2012) (quoting Teamsters, 431 U.S. at 361).
The Tenth Circuit provided a roadmap for addressing certification and summary judgment
motions relating to ADEA pattern-or-practice claims in Thiessen v. Gen. Elex. Capital Corp., 267
F.3d 1095, 1108 (10th Cir. 2001). The court first approved an “ad hoc” approach to certification
of collective claims under 29 U.S.C. § 216(b),3 with an initial, more lenient “notice stage” where
certification is granted as long as there are “substantial allegations” that putative class members
were victims of a single policy or plan, followed by a second, stricter stage where the court reviews
several factors to determine if the plaintiffs are in fact similarly situated.4 In making that
determination, a court must take into account the nature of pattern-or-practice claims and the twostage Teamsters procedure, where the initial focus is not on individual employment decisions “but
3
The ADEA enforcement provision, 29 U.S.C. § 626(b), incorporates remedies available under the Fair Labor
Standards Act (FLSA), including a provision allowing an action to be maintained by employees on behalf of
themselves and other employees similarly situated. See id; 29 U.S.C. 216(b).
4
At this stage, the court examines: “(1) disparate factual and employment settings of the individual plaintiffs; (2) the
various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural
considerations; and (4) whether plaintiffs made the filings required by the ADEA before instituting suit.” Thiessen,
267 F.3d at 1103 (citation omitted.)
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on a pattern of discriminatory decision[-]making.” Thiessen, 267 F.3d at 1106. In Thiessen the
district court erred by failing to consider this structure. Although “a district court considering a
motion to certify is entitled to look past the pleadings and examine the evidence produced during
discovery, … when an ADEA plaintiff relies upon a ‘pattern or practice’ theory and comes forward
with legitimate evidence to support that theory, the district court must take into account” the
Teamsters framework. Id. at 1108.
Thiessen found “little case authority discussing summary judgment motions in pattern-orpractice cases,” but saw “no reason why summary judgment cannot be aimed at both the first and
second stage issues,” provided such motions are analyzed in light of the order of proof unique to
pattern-or-practice cases. Id. at 1108-09. Thus, at the first stage a summary judgment motion
“must focus solely on whether there is sufficient evidence demonstrating that defendants had in
place a pattern or practice of discrimination during the relevant limitations period.” Id. Prior to
resolution of that issue, it might be improper for a court to even consider summary judgment
pertaining to second stage (individual relief) issues, but if it did so the Teamsters framework would
require the court to employ a presumption that the employment decisions were discriminatory. Id.
at 1109.
After reviewing the arguments and relevant case law, the court concludes it is appropriate
to first address whether the ADEA claims are properly asserted collectively under 29 U.S.C. § 216.
Accordingly, the court will first address Plaintiffs’ motion to certify (Doc. 1035) and Spirit’s
motion to strike and decertify (Doc. 1044.) After determining whether collective claims are
proper, the court will address Spirit’s motion for partial summary judgment, as well as any Daubert
or other motions relating to expert testimony that may be relevant to summary judgment issues.
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II. Certification of Collective Action.
Plaintiffs move for final certification of their ADEA collective action. Specifically, they
seek certification of a collective of 15 Plaintiffs asserting age discrimination in terminations, under
both disparate treatment and disparate impact theories, and a collective of 51 Plaintiffs asserting
age discrimination in hiring under a disparate treatment theory. (Doc. 1035.) Defendants move to
strike the collective termination claims and to decertify the previously certified (conditionally)
hiring collective. (Doc. 1044.)
A. Standards.
“Class actions under the ADEA are authorized by 29 U.S.C. § 626(b), which expressly
borrows the opt-in class action mechanism of the Fair Labor Standards Act of 1938, 29 U.S.C. §
216(b) (1994). Section 216(b) provides for a class action where the complaining employees are
‘similarly situated.’” Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102 (10th Cir. 2001).
Thiessen endorsed an ad hoc approach to certification, under which the court typically makes an
initial “notice stage” determination of whether Plaintiffs are similarly situated, requiring only
substantial allegations that the class members were victims of a “single decision, policy or plan.”
Id. at 1102.5 After discovery, the court makes a second determination, using a stricter standard,
and reviewing factors including the following: “(1) disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available to defendant which appear to be
individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs
made the filings required by the ADEA before instituting suit.” Id. at 1103 (citation omitted.)
5
Under the foregoing standards, the court previously approved the parties’ stipulation to conditionally certify a
collective action on Plaintiffs’ failure to hire claims. (Doc. 404.) The conditional certification allowed notice to be
sent to potential class members and provided for an opt-in period. (Id.) Spirit reserved its right to later seek
decertification of the collective failure to hire claim. (Doc. 397 at 2.) Plaintiffs did not previously seek conditional
certification of their termination claims,
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B. Analysis
Plaintiffs claim Spirit was concerned about its aging workforce and health care costs
associated with older workers in Wichita, prompting the company to use a financial loss at its
Tulsa facility as “a pretext for the age-based July RIF.” (Doc. 1038 at 3.) They claim Spirit “rigged
its performance management and retention processes to target older workers” in the RIF. (Id. at
4.) According to Plaintiffs’ economist, “age disparity in termination beg[an] with disparately low
performance ratings, [was] magnified by disparities in retention rankings, then flow[ed] through
to termination outcomes,” such that Spirit “terminated a disproportionately large share of Older
Employees in the July RIF.” (Id. at 8.) Plaintiffs also claim Spirit “refused to rehire the mostly
older workers terminated in July 2013” for hundreds of jobs available after the RIF due to Spirit’s
treatment of their applications. Because of a policy applied to the applications of all former
employees, including Plaintiffs, their applications were routed to an “AP-Hold” status where they
were routinely denied review. Plaintiffs’ statistician concluded that Plaintiffs were “disadvantaged
by being stranded in the Applicant Hold Pool” resulting in significantly reduced chances of success
in the hiring process. (Id. at 9.)
Plaintiffs argue that although they held different jobs, “they all: (1) share the same critical
characteristics: older (40+) salaried SPEEA workers; and (2) suffered from the same centrallyplanned and -executed policies and practices: effort to reduce workforce average age and payroll
and healthcare costs through (a) changing Human Resources (HR) processes (PM and retention
exercise); (b) eliminating protections for long-tenured workers, such as ‘bumping’ and recall
rights; … (c) July RIF, and [d] [Spirit’s] years-long refusal to rehire for hundreds of open
positions.” (Doc. 1038 at 12.)
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The court agrees with Plaintiffs that they have sufficiently identified and cited evidence
that they are similarly situated with respect to common company policies and processes at Spirit,
processes which they claim were part of a Spirit plan to discriminate on account of age. Plaintiffs
were all members of SPEEA and their employment was governed by one of two CBAs; they all
underwent the same PM rating process; they were all ranked under the same retention rank process
called for by the CBAs; and they were all selected for termination as part of the same RIF. The
51 Plaintiffs who allege Spirit unlawfully failed to hire them (collectively ”Hiring Plaintiffs”) were
affected by a common company procedure of having the applications of former employees placed
on AP-Hold status where they were unlikely to be considered. Plaintiffs claim all of the foregoing
processes were tainted by age discrimination. They have cited some evidence in support of their
allegations. In deciding these motions regarding certification and decertification, the court makes
no determination as to whether Plaintiffs’ evidence is sufficient to support a claim of age
discrimination under a pattern and practice theory; that is the subject of Defendants’ partial
summary judgment motion and will be addressed in that motion. The point here is that Plaintiffs
have alleged claims based on company-wide policies and cite evidence that they were subjected
to those policies as part of a common group. Cf. Thiessen, 267 F.3d at 1107 (citing Adamson v.
Bowen, 855 F.2d 668, 676 (10th Cir.1988) (holding that district court, in making class certification
decision, should avoid focusing on merits of underlying class action); Anderson v. City of
Albuquerque, 690 F.2d 796, 799 (10th Cir.1982) (reversing and remanding denial of class
certification where district court indicated its belief that plaintiff could not prevail on individual
claims). Such allegations, including the assertions that these policies were adopted with a
discriminatory purpose or effect, present common factual questions shared by these Plaintiffs, such
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that they are fairly considered to be “similarly situated” for purposes of asserting age
discrimination claims under a pattern and practice theory.
Defendants challenge the collective claims, contending Plaintiffs’ employment situations
are “vastly different,” that Spirit’s defenses require individualized evidence, that procedural
fairness weighs against conducting “15 mini-trials” twice (collectively and individually), and that
some Plaintiffs failed to exhaust their claims. (Doc. 1045.) The court ultimately finds these
assertions are outweighed by evidence that Plaintiffs were subjected to common policies and assert
claims, essentially as a group, and by the common claim that these policies had a discriminatory
purpose or effect. Cf. Thiessen, 267 F.3d at 1105 (“In particular, plaintiffs alleged that defendants,
by way of the MDP and the blocker policy, had a company-wide policy of age discrimination.”)
Defendants are undoubtedly correct that there is some individualized evidence relating to Spirit’s
defenses, but as noted in Thiessen, the pattern or practice trial format contemplates treatment of
such matters in a second stage of trial after a pattern or practice of discrimination has been
established. See id. at 1107 (“Although it is true that defendants asserted ‘highly individualized’
defenses to each of the instances of individual discrimination asserted by plaintiffs, those defenses
would not become the focal point until the second stage of trial and could be dealt with in a series
of individual trials, if necessary.”) As for Defendants’ arguments that some Plaintiffs did not file
or exhaust EEOC charges, the court has previously addressed the “piggyback” rule that allows
workers asserting common claims to rely upon the timely filed charges of others. Under the
circumstances, Defendants have not shown that the failure of any individual Plaintiff to file an
EEOC charge merits denial of certification. Cf. Thiessen, 267 F.3d at 1110 (“The policy behind
the single filing rule is that ‘[i]t would be wasteful, if not vain, for numerous employees, all with
the same grievance, to have to process many identical complaints with the EEOC.’. . . As long as
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the EEOC and the company are aware of the nature and scope of the allegations, the purposes
behind the filing requirement are satisfied and no injustice or contravention of congressional intent
occurs by allowing piggybacking.”)
Plaintiffs’ motion for final certification (Doc. 1035) is GRANTED; Defendants’ motion to
strike and decertify (Doc. 1044) is DENIED. The court finds that Plaintiffs are similarly situated
within the meaning of § 216(b) on their collective claims.
III. Spirit’s Motion for Partial Summary Judgment (Doc. 1040).
Spirit’s motion for partial summary judgment seeks judgment in its favor on the three
collective age discrimination claims asserted by Plaintiffs under the ADEA: (1) the pattern-orpractice disparate treatment termination claim; (2) the pattern-or-practice disparate impact
termination claim; and (3) the pattern-or-practice disparate treatment failure-to-hire claim. (Doc.
1040.)
A. Uncontroverted Facts.
The court finds the following facts to be uncontroverted for purposes of summary
judgment. The following statement excludes any facts asserted by the parties that are not properly
supported by the materials cited in support of them. 6
Spirit is an aerospace manufacturer. Most of its domestic employees work at its Wichita,
Kansas, headquarters, including (as of July 2013) 4,122 salaried and management employees.
SPEEA represents two bargaining units of salaried Spirit employees in Wichita (“SPEEA
employees”), each with its own CBA. The first unit is the WTPU and the second is the WEU.
SPEEA job codes are divided into levels ranging from Level 1 or A (entry level), to Level 4 or D
6
Plaintiffs’ memorandum in opposition (Doc. 1070) purports to dispute a number of Defendants’ asserted facts
without actually addressing the substance of the asserted facts. In those instances, the court has considered the asserted
fact as undisputed for purposes of the motion provided Defendants have properly supported it with a citation to the
record. See Fed. R. Civ. P. 56(e).
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(expert/specialist) and Level 5 or 6 (consultant/senior consultant). Higher level employees have
higher pay scales and are expected to have more and broader experience and skills than lowerlevel employees in the same job code. (Doc. 1041 at 6-7.)
On July 25, 2013, Spirit announced separate layoffs of overhead (management and
salaried) workers at three domestic sites, including Wichita. The Wichita layoff impacted 271
employees, including 50 non-SPEEA employees and 221 SPEEA employees, effective August 8,
2013. (Id.)
Of the 221 laid-off SPEEA employees, 15 now allege unlawful termination (the
“Termination Plaintiffs”) and 51 allege unlawful failure to hire (the “Hiring Plaintiffs”) in this
case. Seven Termination Plaintiffs filed EEOC charges for discriminatory termination, and 16
Hiring Plaintiffs filed EEOC charges of hiring discrimination. (Id. at 8.)
Spirit offered a severance package and paid nearly $6 million to 260 laid-off Wichita
employees who acted on its offer in exchange for a release of all existing claims against Spirit,
except Termination Plaintiffs (minus Bucchin, Doyon, Hatcher, Jackson, and Raymond) and most
Hiring Plaintiffs.
Spirit Executive and Human Resources (HR) Communications
Manager Deborah Miller testified that in 2012, Spirit Chief Operating Officer (COO)
David Walker encouraged managers to promote and guide “our younger people that were coming
on, especially new managers” into leadership positions, stating he thought Spirit had a tradition of
old Boeing DNA and mediocrity, and “the younger people were the future of the company” and
were the key to rising above mediocrity. (Doc. 1070-23 at 5.)
Spirit’s data as of June 2012 showed that the average age of its workforce company-wide
was 45.9 in 2007 and that it had increased in 2011 to 46.4. (Doc. 1080-4 at 1.) As of 2012, the
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average age of workers for the year 2017 was projected to be 45.6. While gathering age data in
June 2013, HR Vice President (VP) Cassie Caster expressed surprise about the proportion of older
workers in the Spirit workforce, writing in an email: “OMG – 76% of our domestic employees are
age 40 and over? Am I reading this right? … 76%??” Carter testified she was surprised “at what
that would do to our skill base if in the next few years people would decide … to leave. How would
we get the work done?” She said, “I didn’t know what the number was, so I didn’t know what to
expect, but two thirds being [near] the window when they could retire is a troublesome thing in
workforce planning.” Carter denied, however, that Spirit ever had a goal, strategy, or initiative to
lower the average age of the workforce. (Doc. 1041-29 at 45-46.)
Spirit HR prepared periodic workforce planning spreadsheets for director-level or higher
managers. These tools included only aggregate data, such as current and projected overall
headcount, average age, or retirement risk within an organization. They did not identify individual
employees and were not used to make individual employment decisions. First-level managers
generally did not have access to workforce planning documents with demographic data such as
age. They instead focused on budgeted headcounts (by number of heads, not labor dollars.) ADP,
a vendor hired by Spirit to aid in hiring, likewise had no access to workforce planning documents,
average age, or retirement risks.
Spirit took a one-time October 2012 $590 million write-down, which was attributable in
significant part to its Tulsa operations. Based on the financial difficulties the company was
experiencing at the time, Spirit’s leadership committed to its Board of Directors that it would cut
a minimum of $150 million from its operations. It focused its cost-cutting primarily on its Wichita
operations, where it had by far the most employees and the oldest average workforce. (Doc. 10805 at 3.) The average age of the Wichita and Oklahoma workforce, respectively, was 47.5 and 45.3.
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The Wichita workforce had a much longer average length of service and larger average salary than
the Oklahoma workforce. (Id.)
In October 2012, Spirit’s HR VP unveiled a “Cost Down Initiative” that discussed
aggressively managing overhead and salaried workforce, including by “replac[ing] long
service/high costs employees with new hires by offering a Voluntary Separation Package.” (Doc.
1080-7 at 3.) It noted that the current budget for personnel based on projected work equated to a
headcount (of total employees) of 15,665, but the company’s current headcount was actually
16,301. (Id. at 4.) The initiative did not propose layoffs.
Healthcare Costs
In 2006, Spirit had launched “Healthy Spirit,” a program that encouraged workers to assess
their health risks. In 2012, using data from that program, Spirit’s benefit consultant, Mercer,
analyzed health costs and identified rising costs, including in the Wichita workforce. Mercer found
that every increase in current age of employees adds approximately 4% in medical costs; predicted
a number of high-cost claimants among SPEEA members; specified that high-cost claimants and
age demographics were some of the factors that increase healthcare spending; and flagged “high
utilization” and “large claims,” among other things, as self-funding risks. It noted that Spirit’s
“population continues to age.” (Doc. 1070 at 5-6; Doc. 1081-4 at 7.) It identified five ways to keep
healthcare costs down: reduce members; reduce services; manage vendors; better decisions by
employees on plan usage; and improve/maintain health. (Doc. 1080-18 at 18.)
After exploring cost-saving measures relating to employee benefits, Spirit elected in
January 2013 to transition to self-funded medical plans, effective July 1, 2013. The change was
projected to result in savings in 2013 of up to $14.8 million. Spirit had the option of purchasing
stop-loss insurance, which “[p]rovides risk protection against catastrophic claims for self-funded
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plans.” (Doc. 1059-25 at 2.) Spirit was informed that 60% of organizations its size purchased stoploss insurance while 40% did not. (According to one of Plaintiffs’ experts, as of 2013 87% of
employers of a similar size had self-funded insurance and only about half (52%) purchased
stoploss insurance.) A Mercer analysis indicated to Spirit that over the five-year preceding period,
Spirit’s stop-loss premiums would have exceeded its claim costs, although in the period 2011-12
there was an increased number of high claimants, and stop-loss insurance would have resulted in
reimbursements in excess of premium estimates. Spirit elected not to purchase stop-loss insurance,
meaning it would be responsible for all healthcare claim costs of its covered workers.
Plaintiffs contend they or their family members posed a high risk of incurring large medical
costs. Their managers, however, would have had little or no knowledge of their particular medical
conditions or costs, although they may have been aware that employees took leave. In June and
July 2013, many managers did not understand that Spirit was changing to self-funded health
insurance or the implications of that change. There is no evidence that managers who rated
Plaintiffs in the 2012 PM ratings or 2013 retention exercise had any knowledge of Plaintiffs’
medical costs or that such knowledge played any part in the ratings given to Plaintiffs.
Of the 221 laid-off SPEEA employees, at least 21 (including some Plaintiffs) were not
directly enrolled in a Spirit medical plan, so their layoff could not have saved Spirit any medical
costs. Another 50 of the 221 had employee-only coverage. Of Plaintiffs, some had varying types
of coverage (employee only, employee and spouse, family), and two continued on Spirit insurance
after their layoff as spouse-dependents.
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2012 Performance Management (PM) Ratings
In October 2012, Spirit announced a $134 million net income loss for the quarter, and it
ended 2012 with net income down 82 percent. In response, Spirit worked to reduce labor (as well
as non-labor) costs.
Spirit had never conducted a management and salaried layoff in Wichita during then-CEO
Jeff Turner’s tenure. Turner viewed layoffs as a last resort. To avoid layoffs, Spirit initially
planned to save over $31 million in payroll by eliminating the lowest-performing ten percent of its
workforce. Spirit anticipated it would use its annual Performance Management (PM) reviews, the
process it used to evaluate salaried employees, to identify the lowest performers. Under the PM
process, managers assign employees an overall PM rating on the following scale: Exceptional;
Exceeds Expectations; Meets Expectations; Meets Some Expectations; and Unacceptable. (The
three middle levels are sometimes shortened to Exceeds, Meets, and Meets Some.) In the past,
Spirit had experienced “grade inflation” in PM ratings, with managers assigning consistently high
ratings. In 2010, for example, 58% of employees were deemed Exceptional or Exceeds.
For the 2012 PM reviews (which occurred in the first quarter of 2013), Spirit told managers
their ratings needed to follow a “bell curve” distribution, with 15% of their employees rated high,
70% in the middle, and 15% at the low end. New employee hires (those who had been hired within
90 days) were exempted from the 2012 PM review. Spirit HR exercised greater control over the
process than it had in the past in order to implement the new bell curve policy. Spirit HR instructed
managers to give employees realistic, honest, and consistent ratings, and to rate on performance,
and not on unlawful factors, including age, or on immaterial factors, including seniority. HR
pressured managers to rate based on performance and indicated a need to identify poor performers.
(Doc. 1080-8 at 4-8.) For example, one exercise asked managers to identify examples of employee
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performance, including whether managers ever noticed opportunities for improvement. (Doc.
1070-23 at 7.) One manager, who said she was told the company needed to “get lean and mean”
and had “dead weight” employees “just filling out their time,” testified she felt like the people she
was being asked to rate lower “tended to be older, tended to have health problems.” (Id. at 24.)
Spirit essentially required managers to adjust the rating scale so that a group of low performers
would be identified.
The process included “calibration” sessions organized by HR in which managers from
across the organization met to review initial ratings, provide input, and foster consistency in
ratings. During calibration sessions, HR kept a spreadsheet of employees to ensure that each
employee was discussed. Each manager discussed his or her employees, declared how they would
rate them, and others provided input. Managers from across the organization weighed in. If upperlevel managers disagreed, they hashed it out during the session, but no one could override a direct
manager’s final rating. The ratings were ultimately made by individual managers, who had
discretion within the foregoing bounds to rate their employees. Some managers did not like the
new requirements or thought they were unfair; some were disciplined or fired when they resisted
or refused to follow them. Managers’ own ratings were determined in part by how well they
executed the PM process.
The HR training sessions for managers included materials that identified four case studies
of hypothetical employees. One involved an employee (“Sue”) who does what the manager wants,
shows enthusiasm, and whose work is great; a second (“Gus”) has worked for 15 years with five
different managers, whose work is not great, who had a negative attitude and no desire to learn
anything new; a third (“Bill”) is a good employee but who didn’t complete an objective on time at
a time when the employee was overwhelmed on other projects; and a fourth (“John”) who was a
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new member of the team who was eager to learn, has taken initiative, and whose work is always
high quality. The materials asked managers how they would rate each of these employees. The
materials identified common mistakes in appraisal, including grade inflation, “nice guy effect”
(rating on employee personality rather than performance), and “central tendency” (rating people
in the middle because it is easier than identifying the top and bottom performers). (Doc. 1080-8 at
14-18.) The materials were part of a 29-page training packet for managers on the 2012 PM rating
process that stressed the need to identify poor performers to improve Spirit’s overall operations.
(Id. at 3-4.)
HR permitted managers to communicate PM ratings to the employees only after final
approval was received. Union employees had appeal rights concerning their ratings pursuant to
the CBAs.
For the 15 Termination Plaintiffs, their managers: (a) rated six of them “Meets
Expectations” in 2012 (Doyon, Ensor, Hatcher, Jackson, Marks, Richardson) and the rest “Meets
Some Expectations”; (b) rated four the same in 2012 as in 2010 (Ensor, Hatcher, Jackson,
Richardson); and (c) did not rate one (Longan). Of the ten who had lower ratings in 2012 than in
2010, six (Bucchin, Marks, Meadows, Schmidt, Sha, West) had a new manager.
In comparing 2012 PM ratings to 2010 PM ratings, Plaintiffs’ expert statistician reported
that 62% of older workers (1006/1620) had their ratings reduced, compared to 49% of younger
workers (168/342). (Doc. 1046-2 at 14.)
No Plaintiff filed an EEOC charge related to this lawsuit until March 2014, more than 300
days after managers reported the 2012 PM ratings in April 2013.
After the 2012 PM process, HR reviewed all low-rated employee files to determine whether
to terminate the employee, to issue a performance coaching plan (PCP), or to issue an individual
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development plan (IDP). Spirit identified only 50 underperformers for immediate termination, a
fraction of what it was seeking, as most low-rated performers lacked prior documentation
justifying dismissal. HR pushed managers to pursue “more exits and [PCP] plans.” (Doc. 1070 at
10.) Spirit expected to turn “99% of [improvement plans]” into “exits,” but 89% of employees
were actually on track to meet their plans, which was “not in line with BOD [Board of Directors]
expectations.” Thereafter, new CEO Larry Lawson, who favored cost reduction via layoffs,
approved a RIF of 10% of the Wichita workforce.
2013 Pre-Layoff Retention Exercise
CEO Jeff Turner retired in April 2013 just before Spirit hired Lawson as CEO. In his first
month, Lawson learned that Spirit still faced $4.3 billion in financial losses and potential risks to
“mitigate if [it] wanted to stay viable as a company.” (Doc. 1041 at 7.)
The SPEEA CBAs govern the process for laying off SPEEA employees. They call for
Spirit to periodically rank SPEEA employees through a retention exercise and they allow Spirit to
conduct a new retention exercise prior to conducting a layoff. Per the CBAs, employees are ranked
within retention groups (by job classification and exempt/non-exempt status [the WTPU] and by
job classification and skill management code [the WEU]). All active employees within a retention
group, regardless of level, are ranked together. Managers over employees within one retention
group, even if they work in different organizations, meet together to rank the employees in that
group. Per the CBAs, the top 70% are rated A, the next 20% rated B, and the lowest 10% rated C,
with Cs being most vulnerable to layoff. (Doc. 1041 at 9.)
In Article 7 of the WTPU CBA, which addresses workforce issues, Section 7.5(c) entitled
“Retention Rating Group Makeup” provides as follows: “Management will assign the retention
rating by Job Classification for each employee to who[m] this Article applies, with the basic
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objective of identifying those employees who, in the opinion of Management, are best able to
maintain or improve the efficiency of the Company, further its progress and success and contribute
to the successful accomplishment of the Company’s current and future business.” (Doc. 1041-101
at 6.) Section 7.5 on Reductions-in-Force provides: “Should reductions-in-force become
necessary, the Company will retain employees with the best performance or as warranted by
business need in each classification.” (Id. at 4.) The WEU CBA contains similar provisions. (Doc
1041-102 at 8.)
Retention is different than performance (PM ratings), and retention ratings (or rankings)
do not directly correspond to PM ratings. In retention, (1) the decisionmakers and comparators
(managers, by retention group) are different than in PM (managers, by organizational unit; across
job codes); (2) employees are forcibly ranked, meaning 10% must be C-rated even if an entire
group is exceptional; and (3) 2012 performance is only one of three factors considered in retention
ratings. The three factors considered in the pre-RIF retention ratings were: performance (both 2012
PM ratings and 2013 performance), versatility, and criticality. (Doc. 1041 at 9.) Versatility
measures an employee’s breadth of skills and ability to adapt to and perform different types of
tasks, i.e., “how many skills you had” and proficiency in those skills, a partially objective/partially
subjective standard. Criticality measures the importance of an employee’s knowledge, skills, or
role. This covers factors such as the skills Spirit needs now and into the future and how hard it
would be to absorb an employee’s work if they were no longer with Spirit. Different managers
consider different skills critical. (Id. at 10.)
When first-level direct managers cannot agree who should receive a lower rating to meet
the 70/20/10 retention distribution, they sometimes solicit input from second-level managers and,
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ultimately, use seniority as a tie-breaker, with the least-senior employee receiving the lower rating.
(Id.)
A SPEEA employee hired after the most recent retention exercise – that is, one “who enters
the bargaining unit between retention rating reviews” – automatically receives a C rating until the
next exercise. In other words, employees hired since the 2010 exercise were C-rated by default
until the 2013 exercise. As of July 2013, only SPEEA employees hired after the 2013 exercise
cut-off date were C-rated by default. (Id.)
Under the CBAs, employees assigned an “unadjusted” C rating by their manager and who
have at least 20 years of service receive a contractual seniority preference that bumps their rating
to an “adjusted” B and gives them recall rights for their particular job. But the CBAs allow Spirit,
in its sole discretion, to “designate” C-rated employees who will not receive that preference. (Doc.
1041 at 10-11.)
Spirit conducted a retention exercise in June 2013, based on the SPEEA workforce as of
May 20, 2013. Unlike prior exercises, Spirit “designated” nearly all C-rated employees so that the
layoffs would in fact impact the lowest-rated 10% of each group and Spirit could retain its higherrated workers without regard to seniority. Employees could appeal C ratings and designations,
although the time until the RIF was conducted made prevailing on appeal before the RIF was
conducted impractical. Spirit cites evidence that a successful appellant after the RIF could have
been reinstated with backpay. (Doc. 1084-2 at 3.) The designations had no impact on the ratings
of most Cs, as 59% of the Cs (176/298) (including 126/221 layoffs) had less than 20 years of
service. (Doc. 1041 at 11.)
The retention exercise included procedural “guardrails,” including manager training, HR
level monitoring of rating discussion and decisions, an appeals process guaranteed by the CBAs,
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feedback from prior managers (for employees in a new area), and discussions with other managers
to gather additional feedback and foster consistency. The direct managers had a list of employees
who needed to be rated in each retention group, including their seniority, but without age, date of
birth, or other demographic data. Spirit HR “remind[ed] managers that they cannot use [“age, …
disability, … FMLA, personal, medical, or family issues”] in making their decisions.” (Doc. 1041
at 11.) Managers generally did not know the reasons an employee had taken leave.
Spirit HR trained managers to make rating decisions on the merits and not on improper
factors (including age) or immaterial factors (including seniority). Training materials stated that
employees “at the bottom tier of performance,” with “skill deficiencies,” or “with behavior/Value
deficiencies” were to be designated as C employees. (Doc. 1080-38 at 6.) Managers were told it
was not acceptable to “designate or fill Category C with new employees,” as the company had
invested time and money to attract new talent. (Id.) Accordingly, seniority should be used as a tiebreaker rather than as the primary basis for retention, and new employees “should be evaluated
based on how they are progressing, their contribution to date, and their potential going forward.”
(Id.) Neither the CBAs nor Spirit dictated what rating managers should assign to recent hires
during the exercise. The retention exercise was conducted in June 2013; employees who were
hired after May 20 were exempted from the exercise, in part because they had no significant
performance record.
Within the bounds set by the CBAs and HR, more than 300 Spirit managers rated SPEEA
employees. Within each group, direct managers assigned a rating for their employees, which HR
aggregated to see if the 70/20/10 distribution was met. If it was not, those managers met to discuss
each employee. HR facilitated these meetings but did not rate employees or recommend ratings.
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No one could change a direct manager’s ratings without that manager’s approval. (Doc. 1041 at
12.)
The 2012 PM ratings, alone, did not determine retention ratings: (a) not all Cs were from
the two lowest PM categories (Meets Some; Unacceptable); 96/298 (32%) of Cs had a Meets or
Exceeds Expectations rating; (b) not all employees in the two lowest PM categories were Cs;
146/331 (44%) were A/B rated; and (c) most employees with “lowered” 2012 PM ratings (vs.
2010) were not in the two lowest PM categories or C-rated; 1,025/1,204 (88%) were not Cs.
(Doc. 1041 at 12-13.)
Different managers had different methods and reasons for ranking employees, weighting
the retention factors, and assigning retention ratings. Various managers said they ranked Plaintiffs
for the following reasons:
Slusser considered versatility the biggest factor because his group did not
have critical skills. After discussions with other managers, Slusser rated
Doyon C because, relative to her group, she was either less versatile (less
experience and narrower skill set) or a lower performer and deserved a
lower rating.
Connolly ranked his reports by skills and performance and assigned C
ratings to the lowest 10%. He ranked Denny at the bottom because,
although his 2013 performance had improved, he was less experienced and
versatile than others.
Walton wanted to rate Hatcher, who had no performance issues but lacked
initiative and was not proactive, B, but after multiple meetings and heated
arguments, he relied on the seniority tie-breaker to rate her – the least senior
B-rated employee – C.
Holter wanted to rate Marks B but agreed Marks was the right person to rate
C to meet the mandatory distribution because while skilled, he did not apply
himself and was “was the least of the group that we had.”
Kivett (who became West’s manager in 2013) rated West C because her
output and skill set were below average and below her level and experience.
West’s former manager, who claims West deserved a higher 2012 PM rating
than her new manager gave her, said she also likely would have rated West
a C.
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Alley rated Bucchin C because, while knowledgeable, he was
confrontational, which inhibited his performance.
Springer likewise rated Ensor, a knowledgeable employee, C because of
his attitude and treatment of other employees.
Leeks rated Sha C because he struggled to convert his good ideas into
actionable uses and was low performing and not particularly versatile.
Wilson rated Raymond C because of ongoing performance issues and
negative responses when asked to take on new tasks.
Koppelman rated Richardson a C because of lower technical skills.
Walker rated Koch7 C because, while an effective performer, his skill set
was limited to simple, non-critical tasks.
Sanchez considered Bradley, in isolation, a B, but relative to her group she
was a C because she had less experience and ability to perform multiple
functions.
Fuller rated Kilgroe C based on his understanding that anyone with a Meets
Some rating had to be a C, even though Fuller (who had assigned the PM
rating based on a prior manager’s input) believed Kilgroe’s PM rating was
inaccurate.
Bell rated Fondaw C based on guidance that employees who had received
performance coaching in 2013 should be C-rated absent an executive
exception. Bell’s manager requested (but did not receive) an exception, but
understood that this “was a borderline call” given Fondaw’s prior
performance deficiencies.
(Doc. 1041 at 13-14.)
Spirit also ranked its non-union (i.e. non-SPEEA) workers on an A-C retention scale, with
some similar factors considered, although non-union workers were separately rated based on their
performance and “KSA” - knowledge, skills, and abilities. They were given numerical scores
corresponding to A, B, or C bands, under a process that had been used by Spirit in Oklahoma,
although the distribution of the bands was not specified. (Doc. 1080-43 at 2.)
7
William Koch is listed as a Plaintiff but no claim for him is included in the Pretrial Order.
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HR reviewed retention ratings to ensure exclusion of overt bias in the ratings.
Of the 15 Termination Plaintiffs: five were Cs in 2010; six with lower 2013 rankings had
a new manager. Nine had less than 20 years of service, so being designated did not impact their
retention rating, including two who, after appeal, were not designated. At least four were
retention rated in 2013 based on roles they had moved into within the last 1.5 years or so.
As illustrated in the following table, the Spirit managers rated employees older than the
Termination Plaintiffs as an A or B in all ten of their retention groups and rated an employee under
age 40 as a C in seven of ten.
Plaintiff (Age)
Union
Retention
Group
Bucchin (56)
WTPU
Denny (53)
WTPU
Doyon (51)
WTPU
Hatcher (53)
WTPU
Longan (65)
Heston (55)
Marks (53)
Jackson (50)
WTPU
MW
Exempt
KH
Non-Exempt
CD,
Exempt
LP,
Exempt
KJ
Non-Exempt
Meadows (58)
West (50)
WTPU
SE,
Non-Exempt
Raymond (59)
WTPU
NQ
Exempt
KS
Non-Exempt
Richardson (58) WTPU
Ensor (55)
Schmidt (53)
WTPU
Sha (62)
WEU
JE,
Non-Exempt
JA,
63D
# of Older Workers Rated A/B
(age of oldest)
(oldest employees A/B-rated)
26 older than Bucchin (70)
(27 of 30 oldest)
47 older than Denny (68)
(69 of 75 oldest)
6 older than Doyon (71)
(38 of 40 oldest)
20 older than Hatcher (65)
(24 of 25 oldest)
4 older than Longan (69)
109 older than Heston
149 older than Marks
169 older than Jackson
(21 of 22 oldest)
19 older than Meadows (70)
45 older than West
(17 of 19 oldest)
9 older than Raymond (72)
(21 of 23 oldest)
11 older than Richardson (74)
14 older than Ensor
(15 of 17 oldest)
7 older than Schmidt (64)
(28 of 30 oldest)
1 older than Sha (67)
(20 of 23 oldest)
(Doc. 1041 at 15.)
26
Under-40
Workers
Rated C?
Yes
Yes
Yes
Yes
Yes
No
No
Yes
Yes
No
Case 6:16-cv-01282-JWB Document 1115 Filed 05/16/23 Page 27 of 83
Some managers were not happy with the retention rating process or results, but they agreed
that the retention decisions were made for non-age business reasons. Fuller in particular did not
like the ranking or retention process and thought the concept that the company should reduce a
certain percentage of its employees every year “didn’t make sense.” (Doc. 1070-8 at 2.) At an
HR training session on the 2013 retention exercise, Fuller was upset because he felt he was being
told that “[e]verybody who’s a ‘met some’ or lower [PM rating] is going to be considered a
Retention 4” (low retention level) and that managers were not supposed to tell employees why
they were getting that level. (Doc. 1041-36 at 9.) Fuller admitted he was “challenging” at the
training session and said, “So you want us to lie to the employees.” (Id.) Fuller was suspended
for five days after Spirit indicated his behavior was “not representative of a manager performing
his responsibilities to support company initiatives.”8 (Id. at 12.)
Despite the designations (which eliminated a bump in retention rating from C to B for 20
plus year employees), lower-tenure (less than three years) and lower-level (Levels 1 and 2/B)
employees were statistically overrepresented in the C-rated employees, and longer-tenure (20 or
more years) and higher level (Levels 4/D and 5) employees were underrepresented:
Population
< 2 Years of Service
< 3 Years of Service
>20 Years of Service
Level 1 and 2/B
Level 4/D and 5
% of Rated Population
9.5% (274/2,889)
12.3% (356/2,889)
45.5% (1,314/2,889)
% of C-Rated Pool
13.1% (39/298)
16.4% (49/298)
40.9% (122/298)
% Over / Under
38%
33%
-10%
25.4% (735/2,889)
34.3% (991/2,889)
39.3% (117/298)
17.8% (53/298)
55%
-48%
(Doc. 1041 at 16.)
8
Fuller testified at one point that Spirit “didn’t really want to lay off new hires,” indicating he may have attempted
(apparently unsuccessfully) to give a new hire a C rating, although he could not recall details of the incident. (Doc.
170-8 at 3-4) (“I – I think I started to, yes, and I was probably told not to. But, honestly, I don’t remember the details
of that.”)
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The July 2013 Layoff
In July 2013, Spirit leadership called for a layoff of 10-15% of overhead positions in
Wichita, except in ten excluded job or skill management codes. Among the non-excluded SPEEA
jobs Spirit managers considered for layoff, the managers did not lay off anyone in 49 retention
groups.
Managers of SPEEA employees had already identified a bottom 10 percent of each
retention group in the retention exercise. They selected for layoff all C-rated employees in every
retention group in which layoffs occurred, except: (a) Spirit decided that managers could not select
New Hires for layoff (the stated purpose of which was to protect Spirit’s ties with recruitment
sources and not wasting its investments in recruiting), which impacted only 7 SPEEA New Hires,
4 of whom were over age 50 (51, 56, 58, 63), and none in the same group as any Termination
Plaintiff; and (b) Spirit made 5 individual exceptions to retain C-rated employees in groups that
experienced layoffs, 4 of them over age 40 (57, 52, 49, 43) and 1 age 39.
Although Plaintiffs initially alleged, based on rumor and speculation, that Spirit leadership
created a list of workers for managers to target for lowered ratings and layoff because of their age
or medical costs (a position now abandoned), neither HR nor upper-level managers gave individual
managers a list of employees to assign a low rating or to layoff or otherwise instructed managers
how to rate specific employees.
Non-SPEEA employees were selected for layoff by different decisionmakers (their
managers) through a different process than the SPEEA employees, based mostly (“90 percent or
better”) on performance. (Doc. 1041 at 18.)
The July 2013 RIF produced savings to Spirit of $5.7 million in 2013 and $37.8 million in
2014 in salary and health care costs.
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Layoff Demographics
By not laying off anyone in 49 retention groups, Spirit retained 4 C-rated older employees
and only 1 younger C-rated employee. In ten other retention groups, Spirit selected only younger
workers or the same number or fewer older workers as younger workers. Only 33% (6/18) of the
layoffs in those groups were over age 40, even though 70% (116/166) of the employees were over
age 40. Spirit laid off the less expensive Level 1 and 2/B employees (94/572; 16.4%) at about four
times the rate it laid off Level 4/D and 5 employees (43/1016; 4.2%).
Spirit’s Hiring Policies and Practices
A written Spirit policy lists terminable offenses, such as theft or fraud, that make
employees “Not Eligible for Rehire.” Other employees who are involuntarily terminated are
generally ineligible for rehire for 12 months.
(Doc. 1041-108) (“Employees involuntarily
terminated for reasons other than those outlined [above such as theft or fraud] will not be
considered for rehire for 12 months following the date of termination. Depending on the
circumstances, employees might be reinstated through a union grievance settlement earlier than
12 months.”)
In 2009, Spirit had adopted a practice of vetting former employees who reapply. There was
a concern at the time that people who had been terminated for cause were “slipping through the
employment process,” leading the company to put in place a procedure to vet all former employees.
If the person responded on pre-application questions that they had worked at Spirit before,
someone in HR would vet their background to see why they were terminated. (Doc. 1041-78 at 23.)
Laid-off SPEEA employees were not categorically ineligible for rehire. Spirit elected not
to include a no-rehire clause in severance packages offered to Wichita employees. Hiring
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managers had discretion and differing views on whether to hire eligible former employees for
positions they were trying to fill.
Spirit had largely frozen hiring for salaried SPEEA positions as of June 2013. Spirit’s HR
worried this would put it behind in recruiting. Spirit’s policy as of August 2013 was that the
company would hire in key roles but would do no hiring in job codes that were impacted by the
RIF. The company would continue to hire hourly employees for backfill as needed and would
continue to process offers already extended, including 6 SPEEA hires (1 rehire) who started
between July 26 and August 23, 2013. There were no other SPEEA hires until 2014. (Doc. 10819; Doc. 1084 at 9.)
Spirit engaged vendor ADP (and its predecessor) to manage its recruiting. ADP recruiters
did not have knowledge of, or access to, candidates’ (or their dependents’) ages, medical
conditions or costs, disabilities, Spirit leave usage, or Spirit performance or retention ratings. ADP
recruiters post job openings in an applicant tracking system called RightThing Recruit (“RTR”),
which job seekers could access through Spirit’s website.
Spirit often receives hundreds of applications for a single requisition, which can include
dozens of applications by former employees. In some cases, multiple Plaintiffs applied to fill the
same job opening. To be considered for hire, a candidate ordinarily has to apply through the RTR
portal. Whenever a candidate starts to apply, a new application is created in RTR. RTR
automatically generates emails to candidates to confirm submission of an application and with
status updates throughout the process. If there is no entry for a candidate in RTR, Spirit has no
record of the purported application and would not have considered the candidate for the position.
The application process has multiple steps, and candidates are assigned an RTR status that tracks
their progress and records a final outcome. At any stage, a candidate may withdraw (or “deselect”)
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an application. A candidate applies for a specific requisition by completing the applicant prescreen
(“AP”) for the requisition. It includes “knockout” questions, where a disqualifying answer
automatically removes the application from consideration, such as when candidates respond that
they are not 18, are not authorized to work in the U.S., or are a foreign national who requires
sponsorship. Applicants to some hourly jobs can be knocked out when they acknowledge they lack
the requisite experience or lack the ability to work any shift. Knocked-out applications are coded
“AP-Not Qualified.”
Other prescreen answers can cause applications to be put on hold. Candidates who identify
as a former Spirit employee were automatically assigned an “AP-Hold” status, regardless of the
candidate’s age or the date of, or reason for, their exit from Spirit. Such applications do not
automatically advance to a recruiter for consideration. Former employees assigned an AP-Hold
status remained in that status pending a manual review by Spirit HR to determine eligibility for
rehire. Given the volume of applicants, the review process is labor-intensive, as Spirit HR had to
separately determine eligibility for each candidate. HR did not review prior performance records
or instruct hiring managers whether to hire an eligible candidate. Spirit manually reviewed APHold candidates on an ad hoc basis, such as when a hiring manager asked to see the application of
a candidate the manager knew had applied or when Spirit HR requested a bulk review of the APHold pool on a hard-to-fill requisition. If, as often happened, the requisition closed with candidates
still in the AP-Hold pool, those applications would be assigned an “AP-Inactive-Not Selected”
status, which meant no ADP recruiter or Spirit employee ever reviewed their application. The APHold process has been in place since 2009 and the ad hoc review practice has been used since
2011. (Doc. 1041-58 at 19-21.)
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The uncontroverted facts show that Spirit at times engaged in a manual review vetting
process when inquiries were made about former employees. In August 2013, a manager requested
to hire a worker in Wichita who had been laid off by Spirit in Oklahoma (but who sometimes
helped in Wichita). One Spirit HR employee emailed another indicating opposition, noting there
was no requisition for the job and that “we should not be bringing people back that just got [laid]
off and [who] got a severance package.” (Doc. 1081-11 at 1.) Another representative agreed,
emailing Vice President of HR Justin Welner that it “seems to defeat the purpose of the layoff,
hitting headcount/financial numbers,” adding that it “diminishes our defense with SPEEA when
we say they were all C’s but some we want back,” and noting that in the Oklahoma layoff everyone
was made ineligible for rehire. The HR representative suggested that we “at least incorporate into
our Spirit hiring procedures a 12 month break in service before we will consider anyone for
rehire….” (Id.) A few days later, on another manager inquiry about bringing back a laid off
worker, HR discouraged it, saying “we shouldn’t be bringing people back who are recently laid
off and received a severance package,” and that the expectation was “if there are other qualified
candidates they should be provided to the manager first before we would explore hiring a recently
laid off employee.” (Doc. 1081-19 at 1.) At some point after the 2013 RIF, Welner determined
that the 12-month ineligibility policy would not apply to those who were laid off in the RIF. But
according to Welner they “were also our bottom 10 percent for performance and capability,” and
the company had spent a lot on severance packages, so although they were eligible, [t]hey weren’t
likely to be hired back.” (Doc. 1041-78 at 12.)
Spirit held its first post-RIF job fair in October 2013 for open hourly positions. (Doc. 108415.) At the time, Spirit had 487 open requisitions, but it only had three open, non-management
salaried positions in Wichita. (Doc. 1062-3.)
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An HR representative cautioned in a July 16, 2014, email that although RIF’d workers
were eligible for rehire after one year, the company should perform “due diligence” and “vet the
reason they were a designated C and [ensure] there are not past performance concerns.” (Doc.
1041-111.) The representative said Spirit had “paid a lot of money to get them out the door and
we should not be passing up an opportunity to ‘upskill’ and get the right talent in the door.” (Id.)
An ADP recruiter screens the resumes of candidates who pass the AP stage against the job
qualifications on a first-in-first-out basis. For salaried positions, the recruiter identifies the top
candidates for a phone interview (“PI”) stage to further assess the candidate. Once the recruiter
identifies a full slate of candidates for the hiring manager, typically the top 3-5 (hourly) or top 8
or so (salaried) candidates per opening, the recruiter stops reviewing applications unless the hiring
manager asks to see more. If a recruiter notices a candidate has an active application on another
requisition, the new application is coded “Active on Other Req,” which puts it on hold without
further consideration to avoid issues caused by multiple managers considering the same candidate
for different jobs at the same time. Recruiters exercise judgment based on resumes, phone
interviews, and position requirements to determine which candidates to forward to a hiring
manager (“HM”) stage. Based on resumes and recruiter PI notes, the hiring manager (rather than
Spirit HR) decides who to interview and who should be offered the position. Hired candidates are
coded as “HI-Hired” in RTR. Spirit requires candidates for some jobs to complete a preemployment assessment. Candidates who fail it are coded “Not Qualified.”
ADP also proactively searches for candidates who might be interest in open Spirit
positions. It “resume mines” (“RM”) databases such as Indeed and invites prospective candidates
to apply for a Spirit job. Job seekers can also join a “talent community” to receive notification of
new job postings. ADP collects information about these prospects and assigns them an “RM”
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status, but they still must go to Spirit’s recruiting portal and submit an application before they can
be considered for a particular opening. Candidates who show a final “RM” status did not accept
ADP’s invitation to apply for a job opening. When ADP recruiters search existing candidate
profiles in RTR for a prospective candidate, a new entry for that candidate is created in RTR but
is not assigned any status. Entries without any status are not applications for an open Spirit
position. SPEEA employees had recall rights under a CBA unless they were designated by Spirit,
but the recall process is separate from the process for applying to an open requisition.
Post-Layoff Hiring Outcomes
In the nine years since the 2013 layoff, many laid-off SPEEA employees have sought
employment with Spirit. Spirit has reemployed 34 of them, including 5 Plaintiffs (Carter, Denny,
Doyon, Jackson, Moran), and engaged 5 others (including Russell) as contractors. At least 2
declined a job offer (Williams, Hatcher).
RTR data for requisitions on which Hiring Plaintiffs applied after the layoff (through
March 31, 2017) show Spirit hired 799 older workers on those requisitions, in line with the age
demographics of applicants. Extracting from the RTR data all entries for Hiring Plaintiffs created
on or after July 25, 2013, through March 31, 2017 (the discovery period) captures 790 entries, with
a total of 33 different disposition statuses in 8 different stages, including 37 RM or no-status
entries. After excluding the (37) RM and no-status entries, the remaining 753 entries represent an
application submitted through RTR by 48 Hiring Plaintiffs. Those 48 Plaintiffs submitted as few
as 1 application (Moehring, Troilo, Byram, Gardner, Rahbar) and as many as 74 (Jackson), from
as early as July 25, 2013 (while still employed by Spirit) to February 11, 2017, and to 467 different
requisitions managed by 16 different ADP recruiters or Spirit HR staffers, covering 392 different
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job titles and from college internship and entry-level positions to expert, management, director,
and senior director level positions, located at 5 different Spirit locations in 3 different states.
Of Hiring Plaintiffs’ 753 applications, at least 36 were submitted to a requisition after Spirit
had already made its last job offer to any candidate on that requisition, such that the Hiring Plaintiff
could not have been considered for that opening. Additionally, 3 applications are duplicates by the
same Hiring Plaintiff to the same requisition. Of the remaining 715 applications, 329 were
submitted to a requisition on which Spirit never hired anyone. Of the remaining 386 applications,
92 were submitted (a) for Hiring Plaintiffs who filed an EEOC Charge, but more than 300 days
before filing a failure-to-hire Charge or anytime thereafter; or (b) for Hiring Plaintiffs who did not
file such a Charge, more than 300 days before the first-filed or anytime after the last-filed failureto-hire Charge by any Hiring Plaintiff.
Of the remaining 294 applications, 7 were automatically disqualified. Five were knocked
out by their responses to prescreening questions (AP-Not Qualified) (Williams (2), West, Jackson,
Martin); one failed a preemployment test for availability to work any shift (Jackson); and one was
withdrawn (Lawson).
Of the remaining 287 applications, 276 were “held” in RTR and not submitted for further
review: 272 remained in AP-Hold (AP-Inactive-Not Selected); 4 were assigned “Active on Other
Req” status.
Of the remaining 11 applications: 1 led to a rejected job offer (Williams, age 52) on a
requisition for which two other similarly-aged (51) Plaintiffs applied; and 7 were to requisitions
on which Spirit hired someone over age 40, including 4 on which the hire was older or within one
year of the age of the Hiring Plaintiff. Of the 7 applications on which Spirit did not hire someone
older or within one year of the Hiring Plaintiff, an ADP recruiter rejected 4 at the resume-screening
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stage; and as to 3 others a hiring manager who did not know the Hiring Plaintiff’s age or medical
information hired another qualified candidate. Two of the Hiring Plaintiffs (Carter, Jackson) in the
latter group were later hired by Spirit.
Of the 790 entries discussed above, 36 (4.6%) reached a hiring manager. Of those, 27 were
submitted for requisitions on which Spirit never hired anyone.
B. Summary of Expert Opinions Relating to RIF Statistics
1. Plaintiff Expert Lance Kaufman Initial Report.
Lance Kaufman is a consultant with a Ph.D. in Economics. He was “retained by Plaintiffs
to evaluate disparities in terminations related to age and Spirit-covered medical expenses.” (Doc.
1042-2 at 5.) He analyzed Spirit data related to:
1. The impact of age and medical costs on changes in performance management
and retention rankings from 2010 to 2013;
2. The impact of age on the relationship between performance ratings and retention
rankings in 2013;
3. The impact of age on the July 2013 reduction in force; and
4. The impact of medical leave for Spirit-insured employees and family members
on the July 2013 reduction in force.
(Id.) His principal findings are:
1. Changes in Spirit performance management ratings and retention rankings
between 2010 and 2013 show significant disparities for Older Employees. These
disparities are statistically significant after controlling for Job Code, medical costs,
and discipline. [footnote omitted.] Thus, these disparities are consistent with the
Plaintiffs’ contention that in 2013, Spirit’s changes to the performance management
and retention ranking processes disproportionately disadvantaged older employees.
2. Changes in Spirit performance management ratings and retention rankings
between 2010 and 2013 show significant disparities for employees taking medical
leave for themselves or their family members that was covered by Spirit health
insurance (“Covered Leave”). These disparities are statistically significant after
controlling for Job Code, age, and Discipline. Thus, these disparities are consistent
with the Plaintiffs’ contention that Spirit’s July RIF was motivated in part by
medical costs of employees.
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3. Spirit terminated a disproportionately large share of Older Employees in the July
RIF. This difference is statistically significant and remains statistically significant
after controlling for Job Code, performance rating, medical costs, and discipline.
4. Spirit terminated a disproportionately large share of employees with Covered
Leave in the July RIF. This difference is statistically significant and remains
statistically significant after controlling for Job Code, performance rating, age, and
discipline.
(Id. at 5-6.)
Kaufman first looked at employees whose PM rating was lower in 2012 than in 2010. Using
that population of workers, Kaufman determined that 62.1% of older workers (1006/1620)
experienced a rating reduction, while 49.1% of workers under 40 (168/342) experienced a rating
reduction from 2010 to 2012. To account for potential differences in ratings across jobs, Kaufman
performed a logistic regression of rating reduction using both age group and job code as dependent
variables. Kaufman found that after controlling for job code, older workers had greater odds (a
ratio of 1.63) of receiving a PM rating reduction, and the disparity was highly statistically
significant. (Id. at 14-15.)
Kaufman next observed that Spirit’s decision to “designate” all C retention-ranked
employees ahead of the RIF meant that only older workers were deprived of a seniority bump
under the CBAs, as no workers under 40 had 20 years of service, while 62% of older workers did.
(Id. at 15-16.) Next, Kaufman examined retention rankings of what he termed “Low-Rated
employees,” meaning those rated as “Meets Some” or “Unacceptable.” He examined 2010
retention ratings and found a 14.3% chance of older, Low-Rated workers (2/14) being ranked C,
while 45.5% of younger Low-Rated workers (5/11) were ranked C, although this disparity was not
statistically significant. By contrast, he found in the 2013 retention exercise that 67.5% of older
Low-Rated workers were ranked C, while 33.3% of younger Low-Rated workers were ranked C.
Kaufman found older Low-Rated workers in 2013 were twice as likely as younger Low-Rated
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workers to be designated C, and that the disparity was highly statistically significant. (Id. at 1617.)
Because Kaufman was retained in part to evaluate disparities in terminations related to
Spirit-covered medical expenses, he attempted to evaluate disparity pertaining to “employees
taking medical leave for themselves or their family members that was covered by Spirit health
insurance,” a status termed by Kaufman as “Covered Leave.” To do so, Kaufman “constructed a
proxy measure for medical expense by combining medical leave data with insurance data” using
a somewhat complicated process, because Kaufman did not have historical medical expense
information by employee. (See Doc. 1042-2 at 9-10.) Using the proxy of Covered Leave, Kaufman
looked at C ranked employees in 2013 and compared those employees with and without Covered
Leave, finding that 17.1% (26/152) of those with Covered Leave were ranked C, while 9.3%
(191/2052) of those without Covered Leave were ranked C, a risk ratio of 1.84 and a highly
statistically significant (4 out of 1,000) disparity.
Kaufman next examined the impact of changes in retention rankings in 2013, looking at
employees for whom retention rank was reduced from A or B in 2010 to C in 2013. He found 8.1%
(132/1620) of older workers had a reduced ranking compared to 4.1% (14/342) of younger
workers, a risk ratio of 1.99 that was statistically significant (1 out of 100). Kaufman performed a
logistic regression said to control for performance rating, age, Covered Leave, discipline, year and
job code level, and found older workers had more than double (2.41) the odds of being reduced to
a C ranking, a statistically significant disparity representing 2.74 standard deviations. (Id. at 21.)
Kaufman then examined the RIF itself, finding that among “Low-Rated” employees – that
is, those with Meets Some or Unacceptable 2012 PM ratings -, 56.4% of older workers (163/289)
were terminated compared to 28.9% of younger workers (24/83). He found the disparity was
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highly statistically significant (2 out of 50,000 chance). With respect to employees with Covered
Leave, Kaufman found a more than double risk that older workers would be terminated in the RIF
compared to younger workers, 16.4% (36/220) to 7.2% (231/3202), with the disparity highly
statistically significant (2 out of 1,000,000). Kaufman performed a logistic regression to account
for the following factors: Covered Leave, Non-Covered Leave, Discipline, [2012] performance
rating, and job code. Under that analysis, he found older workers and workers with Covered Leave
each had more than double the odds (2.05 and 2.35) of being terminated, statistically significant
disparities of just over 3 standard deviations. (Id. at 23.)
Kaufman concluded his analysis showed “statistically significant age and health disparities
in … Spirit’s 2013 performance management exercise, retention ranking process, and July RIF
selections,” which “are consistent with Plaintiff’s assertions that Spirit employment practices
harmed older workers.” (Id. at 24.)
2. Defendant Expert Paul White Initial Report
Paul F. White is a labor economist with a Ph.D. in the field of economics. He was retained
by Defendants to evaluate the claims in the First Amended Complaint and respond to Plaintiff’s
economic experts, including Dr. Kaufman. (Doc. 1041-119.)
White states that his statistical analysis “indicates that Spirit’s July 2013 RIF … did not
disadvantage older workers.” (Id. at 5.) He faults Kaufman’s analysis, among other reasons, for
“analyzing an incorrect and overly inclusive population, focusing on an arbitrary subset of the
relevant population, making ill-founded assumptions,” and modelling errors. (Id. at 5-6.) White
states that when he corrects for these errors, he finds no statistically significant difference in
termination rates in the RIF. (Id. at 6.) White notes that instead of analyzing only the SPEEA
employees on the Older Worker Benefit Protection Act (“OWBPA”) disclosure list, Kaufman
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examined the entire list, even though over one-third of the workers on the list were not SPEEA
members and were not subject to the same selection process (i.e. the retention rating exercise) as
SPEEA members. White says Kaufman’s comparisons cannot and should not be used to describe
the impact of the RIF on SPEEA members, observing that Plaintiffs’ claims in this suit “are limited
to … SPEEA laid off employees….” (Id. at 25.) He says Kaufman’s analysis “cannot address
whether SPEEA employees age 40 or over were more likely to be terminated in the July 2013
RIF.” (Id.)
White also faults Kaufman for arbitrarily selecting a subset of “Low-Rated” workers to
examine for age-related disparity, because “plaintiffs did not claim age discrimination among the
‘low-rated’ employees,” and the alleged age disparity disappears when the relevant population of
all SPEEA workers is considered. According to White, “Dr. Kaufman’s own methodology and his
own data demonstrates age neutrality in the RIF once applied to all the SPEEA employees on the
OWBPA disclosure list.” (Id. at 7.)
White’s analysis concluded there was no significant change in average age among the
relevant population before and after the July 2013 RIF. He compared the average age of Wichita
SPEEA represented employees before and after the July 2013 RIF and found it was 48.7 and 48.5,
respectively, a statistically insignificant difference. He noted the average age of Wichita SPEEA
employees from 2012 to 2017 was close to 48 throughout that period, all of which he concluded
was inconsistent with Plaintiffs’ assertion that Spirit undertook a campaign to reduce older workers
and replace them with younger workers. (Id. at 9-10.)
White said that the relevant population on Plaintiffs’ claims are the 2,296 SPEEA members
on the OWBPA disclosure list, of whom 221 were selected for layoff. Within that relevant
population, he compared the number of older workers who were actually terminated against the
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number of older workers that would be expected to be terminated based on their representation
among all SPEEA employees on the list. He used multiple pools to reflect the fact that Spirit’s
retention ranking was broken down by job code for WTPU employees, and by skill management
code for WEU employees, and to reflect “the decentralized decision-making process Spirit used
to make layoff selection decisions.” (Id. at 13.) He said not every employee on the OWBPA list
should be compared to the entire pool of employees considered for layoff, but rather to employees
within the same job code or skill management code. Based on a relevant population of 1,832
workers aged 40 and over, and 464 employees under age 40, and controlling for the foregoing
factors, White said it would be expected that just over 177 workers age 40 or over would be
selected for layoff, whereas there were actually 185 older workers selected and 36 younger
workers. White said this difference (8 more older workers terminated than expected) represented
1.31 standard deviations and was not statistically significant. (Id.) White said a similar result is
reached even using Dr. Kaufman’s “overly inclusive” entire OWBPA disclosure list. (Id. at 1516.)
White addressed Dr. Kaufman’s findings and said his selection and comparison of “LowRated” employees was arbitrary, and that there is no evidence of age discrimination in the RIF
when an appropriate pool of the relevant population is examined. White said the focus on LowRated workers was arbitrary because Plaintiffs’ claim is for age discrimination against all SPEEA
members on the OWBPA list, not just the Low-Rated ones. Moreover, he notes the 2013 retention
ranking was based not only on workers’ PM ratings, but also on their versatility and criticality,
factors he said were ignored by Kaufman’s analysis. White said that because retention ranking
included the latter factors, the 2013 retention rankings provided a more comprehensive measure
of the factors considered by Spirit in the RIF than the 2012 PM ratings, and that when the former
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are examined under a logistic regression, older workers were not statistically significantly more
likely to be terminated in the 2013 RIF than younger workers. (Id. at 36.)
White also noted that in 2013, 73 people received a C ranking who were nevertheless rated
as Meets Expectations (i.e., not Low-Rated). White said when the bottom three PM categories are
examined (Meets, Meets Some, Unacceptable), Kaufman’s “statistically significant adverse
findings completely disappear,” and there is no statistically significant difference in assignment of
C rankings between older and younger workers in the 2013 exercise. (Id. at 28.) White repeated
the analysis with employees in one of the top three PM categories and with all SPEEA employees
who were ranked in 2010 and 2012, and found older workers were not more likely than younger
workers to receive a C ranking. White said the results showed that even if older employees were
more likely to see a decline in PM rating from 2010 to 2012, they were not any more likely to
receive a C ranking in 2013 that would lead to their termination. White found that when the
assignment of C rankings among all SPEEA employees was examined, the disparity between older
workers receiving Cs (10.3%) and younger workers receiving Cs (7.8%) was not statistically
significant. (Id. at 29, Table 11.)
White said Kaufman’s analysis of employees taking medical leave did not consider the
relevant population, as it also included non-SPEEA workers on the OWBPA list. White further
said the analysis was not tied to Plaintiffs’ claims of age discrimination, as whether or not workers
with higher medical costs were more likely to be terminated “is ultimately unconnected to the issue
of discrimination against older workers in the July 2013 RIF.” (Id. at 31.) White said Kaufman
attempted to connect the two by relying on a general study finding that insurance claim costs were
higher for older persons and assuming that older employees at Spirit generate higher medical costs
to Spirit than younger employees. But if “Covered Leave” was a reasonable proxy for such costs,
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White stated, then the proportion of older workers taking covered leave should be higher for older
than younger workers, but White concluded that was not the case. (Id. at 32.)
3. Rebuttal and Supplemental Reports
Kaufman and White each offered follow-up opinions, including Kaufman’s rebuttal report
(Doc. 1042-3), White’s supplemental report (Doc. 1042-9), Kaufman’s supplemental report (Doc.
1042-4), White declaration (Doc. 1042-7), and Kaufman deposition (Doc. 1042-8).
Kaufman’s rebuttal findings included his opinion that White’s analysis of average age
before and after the RIF was not statistically valid, and that it does not reliably identify age
disparities in terminations. (Doc. 1042-3 at 4.) He said the “pools” analysis used by White overly
fragmented the data on terminations and made it too weak to identify significant disparities. Even
so, Kaufman said a pools analysis shows statistically significant age disparities. Kaufman
maintained that the OWBPA list and the Low-Rated employees were appropriate groups to
analyze, but he said in any event his results are not materially impacted if limited only to SPEEA
employees. Kaufman also criticized White’s rejection of the broader OWBPA list, saying White
“provides no explanation for why potential discriminatory behavior would be limited to SPEEA
employees.” (Id. at 10.) He said use of the more limited SPEEA subset would still show statistically
significant disparities disadvantageous to older workers in PM rating reductions, C ranking
reductions, and terminations of Low-Rated employees. (Id. at 11.) Kaufman emphasized that his
analysis of PM rating and C retention reductions was intended to demonstrate that “age disparities
exist in both the performance rating process and the retention ranking process,” not to connect
those two matters to terminations. (Id. at 13.)
Kaufman said controlling analysis of terminations using retention rankings, as White
suggested, was not statistically valid “because the retention ranking process is subject to age
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disparities.” (Id.) With respect to analysis of Low-Rated workers, Kaufman rejected White’s
accusation that the analysis was arbitrary, stating that Low-Rated workers were targeted by Spirit
and “[t]hese employees were terminated at a much greater rate,” which “leads to a reasonable
conclusion that Spirit’s termination process for low rated employees differs from Spirit’s
termination practices for employees assigned a ‘Meets’ performance rating.” (Id. at 14.) Kaufman
believes that White’s inclusion of employees with “Meets” ratings in the analysis is inappropriate
because it “fails to appropriately control for the relationship between performance rating and
termination.” (Id.) Kaufman also defended his examination of Covered Leave, saying it was
reasonable to assume employees with a need for medical leave will incur medical costs and some
of those costs would be passed on to Spirit. In any event, Kaufman said his analysis showed a
ranking and termination disparity with respect to employees with Covered Leave, not health care
costs. (Id. at 16.)
In rejecting Dr. White’s suggestion that his regression models should control for retention
ranking rather than performance ranking, Dr. Kaufman said his analyses “suggest that the presence
of age disparity in termination begins with disparately low performance ratings, is magnified by
disparities in retention rankings, then flows through to termination outcomes,” and that controlling
for retention rankings “risks explaining away the age effect and risks obscuring the true role of age
in termination outcomes….” (Id. at 18.) Kaufman further asserted that retention ranking was not a
good control because it was highly correlated with termination and would leave little explained
variation in terminations. Kaufman also rejected White’s suggestion that he should have included
both 2010 and 2012 PM ratings changes as controls in his regression models, saying there was too
much correlation between the two. In sum, Kaufman said nothing in White’s report caused him to
change his opinions.
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White’s supplemental report noted a correction relating to errors in 13 Spirit identification
(ID) numbers, which had some minor effect on his calculations and his review of Kaufman’s
analyses. White again identified 3,473 total Wichita employees on the OWBPA disclosure list who
were considered for layoff, of whom 2,296 were Wichita SPEEA employees, and of whom 221
SPEEA employees were selected for the RIF. White said Kaufman and another expert (Dr. Robert
A. Bardwell) incorrectly identified 2,388 SPEEA employees on the list in their rebuttal reports,
caused in part by a coding error that eliminated entries for duplicate Spirit ID numbers over a
period of years, but which failed to account for whether the employee was a SPEEA member at
the time of the RIF. (Doc. 1041-120 at 7-8.) White said this error meant Kaufman’s analysis could
not provide useful evidence relating to SPEEA employees. White updated his own calculations
and again found no statistically significant disparity in termination of older and younger SPEEA
employees in the RIF. (Id. at 9.) White further found no statistically significant disparity using the
entire OWBPA list, including non-union employees, as suggested by Kaufman’s analysis. (Id. at
11.)
White corrected his calculations relating to the number of SPEEA employees within the
various PM rating categories – including 70 rated “Meets” who were selected for the RIF – and
again found no statistically significant disparity in older versus younger workers selected for the
RIF from the three lowest PM categories. (Id. at 13.) White also said if Kaufman’s analysis of
the effect of age on termination is limited to the 2,296 SPEEA employees on the OWBPA list,
there is no statistically significant disparity between older and younger workers who were
terminated in the RIF. (Id.) White again maintained that both the 2010 and 2012 PM ratings should
be added as control factors in Kaufman’s regression model for the RIF, and that doing so showed
no statistically significant disparity in ages of workers selected for the RIF. (Id. at 14.)
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Kaufman’s responsive supplemental report (Doc. 1042-4) said the data corrections
identified in White’s report did not alter the findings in Kaufman’s prior reports. (Id. at 4.)
Kaufman concluded the new termination analyses in White’s supplemental report are erroneous;
that White inappropriately removed relevant and statistically important control variables from his
own analyses and from Kaufman’s; that the change in 13 Spirit IDs and White’s method of
identifying SPEEA employees makes no difference in the results in the initial Kaufman report and
no material difference in the results in Kaufman’s rebuttal report; that the “new analysis of SPEEA
employee identification methodology in the White Supplemental Report is immaterial”; and that
Kaufman’s findings “support an inference that Spirit’s RIF had a disparate impact on older
employees.” (Id. at 7.)
C. Applicable Standards
1. Summary Judgment. Summary judgment is appropriate if the moving party
demonstrates that there is no genuine dispute as to any material fact, and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247– 48 (1986) (emphases in original). “A fact is material if, under the
governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact
is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.”
Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020) (quoting Jones v. Norton, 809 F.3d
564, 573 (10th Cir. 2015)). Conclusory allegations are not sufficient to create a dispute as to an
issue of material fact. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court views
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the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
2. Pattern and Practice Claims. In Teamsters, the Supreme Court said the plaintiff could
prove a discrimination claim by showing that an employer's conduct was part of a pattern or
practice of discrimination against minority employees. Teamsters, 431 U.S. at 336. To do so, the
plaintiff had to show “more than the mere occurrence of isolated or ‘accidental’ or sporadic
discriminatory acts.” Id. It had to “establish by a preponderance of the evidence that racial
discrimination was the company's standard operating procedure [--] the regular rather than the
unusual practice.” Id.
In Apsley v. Boeing Co., 691 F.3d 1184 (10th Cir. 2012), the Tenth Circuit outlined the
order of proof on a pattern and practice claim:
Under the ADEA, a class of plaintiffs proceeding under a pattern or practice theory
must first make a prima facie showing that unlawful discrimination has been a
regular procedure or policy followed by an employer or group of employers. If they
succeed, the burden then shifts to the employer to defeat the prima facie showing
of a pattern or practice by demonstrating that the plaintiffs' proof is either inaccurate
or insignificant. If an employer fails to rebut the inference that arises from the
[plaintiffs'] prima facie case, the finder of fact can conclude that a violation has
occurred and the trial court can award prospective equitable relief.
If the plaintiffs also seek individual relief for the victims of the discriminatory
practice, the case moves into the second or subsequent stages. In these additional
proceedings, it must be determined whether each individual plaintiff was a victim
of the discriminatory practice. Importantly, by having prevailed in the first stage of
trial, the individual plaintiffs reap a significant advantage for purposes of the second
stage: they are entitled to a presumption that the employer had discriminated against
them.
Id. at 1194 (citations and quotation marks omitted.)
At the first stage of a pattern or practice claim, a summary judgment motion “must focus
solely on whether there is sufficient evidence demonstrating that defendants had in place a pattern
or practice of discrimination during the relevant limitations period.” Thiessen, 267 F.3d at 1109.
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3. Daubert. Federal Rule of Evidence 702, which controls the admission of expert witness
testimony, provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. Under this rule, the district court must satisfy itself that the testimony is both
reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such
testimony. Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1282 (10th Cir. 2018) (citing United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc)). The district court must first
determine whether the witness is qualified by knowledge, skill, training, experience, or education
to render an opinion. Id. If so, the district court must determine whether the witness's opinion is
reliable by assessing the underlying reasoning and methodology. Id. at 1283. The court is not
required to admit opinion evidence that is “connected to existing data only by the ipse dixit of the
expert,” and may exclude the opinion if “there is simply too great an analytical gap between the
data and the opinion offered.” Id. (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
But the rejection of expert testimony is the exception rather than the rule, and “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993).
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“The court has discretion to determine how to perform its gatekeeping function under
Daubert.” In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig.,
No. 17-MD-2785-DDC-TJJ, 2020 WL 1164869, at *3 (D. Kan. Mar. 10, 2020) (citing Bill Barrett
Corp. v. YMC Royalty Co., LP, 918 F.3d 760, 770 (10th Cir. 2019)).
D. Analysis
1. Pattern or Practice - Termination Claim – Disparate Treatment.
Plaintiffs claim that they were terminated on account of their age pursuant to a pattern or
practice of age discrimination by Spirit. They assert both disparate treatment and disparate impact
theories. As indicated by Apsley, the initial question is whether Plaintiffs have cited evidence from
which a jury could reasonably find that “unlawful [age] discrimination has been a regular
procedure or policy followed by” Spirit. Plaintiffs cite both anecdotal and statistical evidence
which they believe supports this claim.
Noticeably absent from Plaintiffs’ evidence is anything suggesting that prior to or aside
from the 2013 RIF, Spirit had any history or common practice of engaging in age discrimination
generally such that it could be fairly said to be the company’s “standard operating procedure.” Cf.
Teamsters, 431 U.S. at 336. To the contrary, the uncontroverted facts show that Spirit employed a
predominantly older workforce, including at its Wichita site. Defendants argue that against this
background, the challenged RIF cannot support Plaintiffs’ claim because “a ‘one-shot’ layoff …
cannot be a ‘pattern or practice.’” (Doc. 1041 at 40.) Plaintiffs’ allegation that Spirit altered its
traditional rating employee practices to specifically target older workers in a one-time RIF in 2013
hardly seems consistent with a showing that discrimination was the company’s “regular rather than
unusual” practice. Teamster, 431 at 336. Cf. Equal Emp. Opportunity Comm'n v. TriCore
Reference Lab'ys, 849 F.3d 929, 937 (10th Cir. 2017) (“The claim requires proof that the employer
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had a regular practice of discrimination—'more than the mere occurrence of isolated or ‘accidental’
or sporadic discriminatory acts.’”) (quoting Teamsters, 431 at 336). Still, the court finds no
authority stating that a company RIF, in and of itself, cannot support a claim alleging a pattern or
practice of discrimination. Cf. Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1127 (10th Cir.
2009) (affirming district court’s conclusion that pattern or practice framework could be invoked
by plaintiffs in an ADEA case; plaintiffs had been terminated in a RIF).
But assuming the rather dubious proposition that a one-time RIF can support a pattern or
practice claim, Plaintiffs nevertheless fail to cite evidence to support such a claim here. The
uncontroverted facts show that hundreds of different Spirit managers – not Spirit HR or executives
– made the PM and retention rankings that led to the selections in the RIF on which Plaintiffs base
their pattern or practice termination claims, and the facts further show that the managers made
these rankings applying facially neutral standards. Plaintiffs nevertheless argue that Spirit’s HR
“controlled performance management and retention processes” in order “to accomplish [Spirit’s]
stated goal to cut high-cost, long-tenured employees….” (Doc. 1070 at 44.)
But the
uncontroverted facts show only that Spirit HR required managers to conform to bell-curve
distributions in PM ratings and emphasized ratings based on performance rather than on other
factors, including seniority, for the purpose of identifying lesser performing employees. In other
words, Spirit HR set age-neutral guideposts within which managers exercised discretion to
evaluate the employees under their supervision. Similarly, HR trained Spirit managers how to
make ranking decisions on the 2013 retention exercise under a CBA-required distribution scale,
but again directed them to rank based on performance, not upon improper factors, and directed
managers to identify employees “at the bottom tier of performance” with “skill deficiencies” or
“with behavior/Value deficiencies.” (Doc. 1080-38 at 6.) HR also discouraged managers from
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“taking the easy way out” and simply filling up the C category with new employees, saying new
employees “should be evaluated based on how they are progressing, their contribution to date, and
their potential going forward.” Welner testified this was done because he wanted managers “to go
through the hard work of truly identifying the bottom performers so that that’s the group we
exited.” (Doc. 1070-33 at 9.) Cf. Pippin v. Burlington Res. Oil and Gas Co., 440 F.3d 1186, 1197
(10th Cir. 2006) (“Indeed, our cases have previously held that leaving out new employees from
RIF decisions does not establish pretext.”) (citation omitted.) Some managers were obviously
uncomfortable with or resistant to the change this represented from prior years (marked by inflated
performance ratings by some managers and a habit of other managers to rank most employees in
the middle of the performance scale) and to the concept of singling out and identifying employees
whose performance, compared to others, was lacking. But nothing in the evidence cited by
Plaintiffs reasonably supports an inference that HR’s company-wide training dictated or even
suggested to managers who made the individual rating decisions that they should select employees
for lower ratings based on their age. The ranking criteria imposed by HR were age-neutral and do
not support an inference that Spirit endorsed or required managers to apply age-discriminatory
criteria.
Plaintiffs cite evidence of what they claim was a purposeful Spirit plan to eliminate older
workers, beginning with the fact that Spirit tracked its workforce age by location. But tracking
average ages in the manner cited is not necessarily nefarious and has entirely legitimate purposes,
including managing business risks from the loss of employees to retirement. Cf. Apsley, 691 F.3d
at 1205 (age-tracking documents citing aggregate age of workforce was “innocuous”). Plaintiffs
also invoke what they characterize as Spirit’s “preoccupation,” “hyper focus,” or even “obsessive[]
focus” on workforce age. (Doc. 1070 at 3, 37.) In support, Plaintiffs cite little more than random
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comments by Spirit leaders engaged in long-term business planning who indicated managers
should encourage and mentor younger workers because they were the “future of the company,”
which is essentially a truism. Plaintiffs question whether it was justified to cut labor costs in
Wichita at all, asserting that the $590 million write-down that prompted the cutbacks at Spirit were
“mainly” due to problems in Tulsa and “the Wichita plant was financially sound.” (Doc. 1070 at
4.) They similarly contend that the RIF did not really make economic sense, but they cite no
evidence that Spirit did not face some economic difficulty or that Spirit leaders did not genuinely
believe the RIF was in furtherance of the overall financial interest of the company.
In the same vein, Plaintiffs seek to support their theory that Spirit targeted older workers
through a RIF by citing opinions of Kevin E. Cahill, an economist with a Ph.D., who was asked
“to provide an applied microeconomic assessment of Defendant’s actions related to its workforce
reductions, increases, and planning from 2012 through 2017.” (Doc. 1043-2.) After viewing
various Spirit documents and SEC filings, comparing Spirit’s actions to the actions of other
companies, and applying various formulas related to profit maximization, Cahill opines that “[t]he
actual reason behind Spirit’s RIF … can be assessed through a review of Spirit’s actions,” and
Cahill’s review of those actions “suggests that a change in business strategy was not the primary
reason for the RIF.” (Id. at 7.) He believes Spirit’s “filings with the SEC do not depict a company
that is addressing a systemic issue regarding the productivity of its workforce,” while Spirit’s
internal documents “stress the importance of labor costs prior to the RIF, and noted improvements
in labor costs after the RIF,” such that “[c]ollectively, the empirical evidence suggests that the
reason behind Spirit’s RIF was profit maximization through workforce reductions that targeted
Spirit’s most expensive workers – those who were older and those who had high healthcare costs.”
(Id. at 8.) In sum, he believes the RIF “exhibits several characteristics that indicate the RIF targeted
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its most expensive workers,” including: Spirit not mentioning in public statements a change in
business strategy and “block[ing] the rehiring of the workers it laid off;” public statements that did
not emphasize systemic performance issues within its workforce; and Spirit internal documents
that “highlight a focus on Spirit’s most expensive workers,” behavior that is “consistent with”
layoffs targeted at older workers and those who had high healthcare costs. (Id. at 24.)
Defendants move to exclude Cahill’s testimony under Daubert. (Doc. 1043.) They contend
he is not qualified to offer opinions on interpretations of language in SEC filings, that he seeks to
impermissibly opine on Spirit’s motivations for the RIF and subsequent hiring, that his opinions
would be unhelpful to the jury, and that they are unreliable because he failed to consider sufficient
facts and reliably apply his principles and methods. In response, Plaintiffs assert that as an
economist, Cahill “is qualified to examine and extrapolate from SEC filings,” that he relied on
sufficient facts to offer a reliable and helpful opinion, that he has opined on Spirit’s actions and
not its state of mind, after applying a “well-founded microeconomic profit maximization
framework to empirical evidence,” and that he reliably applied his methodology to the facts.
Plaintiffs contend Defendants arguments go to the weight, not the admissibility, of the testimony.
After review of these arguments, the briefs, and the cited materials, the court concludes the
motion to exclude Cahill’s testimony should be granted. As an initial matter, the court agrees with
Defendants that Cahill offers opinions outside the area of his economic expertise when he
interprets or opines on the significance of statements and omissions by Spirit in its SEC
disclosures. (See Doc. 1042-3 at 8) (“Spirit’s filings with the SEC do not depict a company that is
addressing a systemic issue regarding the productivity of its workforce.”) Among other things,
Cahill purported to “evaluate how common it is for a publicly-traded company to implement a
change in business strategy that entails large-scale layoffs, and to not disclose the change in
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strategy in its public filings.” (Id. at 16-17.) He obtained information about Worker Adjustment
and Retraining Notifications (WARN) from a Department of Labor database (that included
information for 24 states (not including Kansas)) and searched WARN notices for the period 2012
to 2019, for public companies laying off between 200 and 500 workers. Among 64 companies
found matching the criteria, two-thirds mentioned the RIF in their 10-K or 10-Q filings with the
SEC, more than half quantified the costs associated with the RIF, and 73% mentioned a business
restructuring. Cahill found “only six of the 64 companies … had a pattern that resembled Spirit’s
actions (i.e., no mention of a strategic change and no mention of a willingness to rehire laid-off
workers.)” (Id. at 18.) While this sort of statistical analysis is clearly within Cahill’s expertise, no
showing is made that he has any expertise on the legal requirements of disclosure pertaining to
layoffs in such filings, or, for that matter, the business significance of non-disclosure. Yet he
considered Spirit’s asserted non-disclosure as a factor contributing to his conclusion that “the
empirical evidence is inconsistent with a change in business strategy as the reason for Spirit’s
RIF.” (Id. at 20.) That strays beyond any demonstrated economic expertise. Noting Spirit’s
assertion that it targeted underperforming workers in the RIF to control costs, Cahill said that “[t]o
evaluate the plausibility of this explanation … I look to what Spirit disclosed to the market about
any systemic inefficiencies within Spirit’s workforce at the time.” (Id. at 20.) Cahill found
significance in Spirit’s description in various 10-Ks of its workforce as a “Competitive and
Predictable Cost Structure” or “stable and predictable.” In contrast, Cahill said, certain other
businesses (he cited four) commented in 10-K filings on their workforce inefficiencies, which
Cahill again found to be “empirical evidence … inconsistent with systemic labor force efficiencies
being the reason for Spirit’s July 2013 RIF.” (Id. at 22-23.) Like his other conclusions, this one
attributes significance to the particular language used in SEC filings in a manner that strays beyond
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economic expertise, and it rejects Spirit’s asserted explanation as implausible without an adequate
factual or logical foundation, simply on the grounds that Spirit’s manner of disclosure was less
common among the filings he examined. In a manner closer to his area of expertise, Dr. Cahill
proceeded to discuss certain economic incentives and consequences relating to a RIF, but his
ultimate conclusions similarly are not shown to rest upon an adequate factual foundation or
represent a reliable method of analysis. After noting that Spirit shifted to a self-funded health plan,
which Cahill said would “increase the financial incentive [for] laying off such [high cost]
workers,” and noting the costs associated with retaining experienced workers, and the tradeoffs
involved from reduced costs and lost gains in productivity, Cahill asserted:
Unlike the change-in-business strategy explanation or the productivity-based
targeted-workforce-reduction explanation, the targeting of high-cost workers has a
clear financial incentive tied to it and the empirical evidence, taken as a whole,
suggests that Spirit’s decisionmakers responded to this incentive.
(Doc. 1043-2 at 24.) It is not at all clear what “empirical evidence” led to this conclusion. See Roe
v. FCA US LLC, 42 F.4th 1175, 1180 (10th Cir. 2022) (“nothing in either Daubert or the Federal
Rules of Evidence requires a district court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert. A court may conclude there is simply too great an
analytical gap between the data and the opinions offered.”) (citations omitted.) The imputation of
company motives based on a review of economic incentives in the manner described has not been
shown to be the product of a verifiable and reliable method. Moreover, it is clear to the court that
this sort of testimony, aside from the problems noted above, would not be helpful to the jury in
deciding the issues in this case. A jury can plainly understand without expert testimony the concept
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that Spirit had some incentive to reduce its labor costs, including the costs it incurred for health
care. Spirit’s motion to exclude the testimony is accordingly granted.9
Plaintiffs ultimately fail to cite any competent evidence that Spirit did not genuinely believe
its cost-cutting measures through the RIF were in the financial interests of the company, even if
Plaintiffs or selected economic experts question Spirit’s judgment. Nor have they cited evidence
that Spirit intentionally targeted older workers in the RIF, or that Spirit’s decision to significantly
cut its salaried workforce in Wichita was otherwise a pretext to fire older workers.
Plaintiffs attempt to tie this case to Thiessen by asserting that on two occasions a Spirit
executive referred to older workers as “blockers” of new talent. (Doc. 1070 at 4.) But Plaintiffs
fail to support this allegation,10 and at any rate they cite no evidence of a Spirit “blocker policy”
[i.e., a plan to remove older workers for the purpose of allowing advancement or hiring of younger
workers] of a type that would support a pattern or practice claim. Cf. Thiessen, 267 F.3d at 1100
(company executives discussed plans to “remove blockers,” gave presentations on getting rid of
“blockers,” and distributed a list of “possible blockers” to HR). The layoffs in Wichita constituted
9
Defendants’ motion to strike (Doc. 1090) additional opinions offered by Cahill in a declaration (Doc. 1043-2) is
GRANTED. The declaration attempts to insert new expert analyses (specifically in paragraphs 10-14 of the
declaration) on matters not previously addressed and was offered far beyond the deadline for disclosure of expert
opinions. Nor is Plaintiffs’ argument persuasive that the new opinions are merely a permissible supplement to Dr.
Cahill’s initial report or a proper response to the Daubert motion. The opinions offered include an entirely new analysis
of data not previously addressed in Cahill’s initial report. Plaintiffs do not assert that the data was previously
unavailable. Moreover, Defendants have demonstrated they will suffer prejudice given that they relied on the scope
of the initial report in determining to file a Daubert motion rather than depose Cahill or obtain an expert for rebuttal.
Given the impracticality of conducting a deposition at this point, the proper remedy is to exclude the opinions in
paragraphs 10-14 of the declaration.
10
In support of this allegation at Doc. 1070 at 4, Plaintiffs cite “Ex. 47, 88557” and “Ex. 59, Lawson Dep. 129:5-14.”
Exhibit 47 is an email that does not discuss “blockers.” (Doc. 1080-6.) The reference is apparently to another exhibit
in which Spirit’s Sam Marnick, in discussing an incentive program for voluntary retirements as an alternative to a
RIF, noted “there are quite a few more tenured ops managers (lots of experience but also blockers of development of
less tenured folks.)” (See Doc. 1039-2.) Aside from the absence of any showing that a policy of removing older
“blockers” was employed in implementing the RIF, the email itself refers only to employee “tenure,” not age. As for
the cited excerpt from Exhibit 59, it shows that CEO Lawson testified, “[i]f we didn’t have the talent, we’d go get it.
If we had the talent, we didn’t want to lose it,” and that his focus was to make sure that “[w]e retain the necessary
talent we needed to run our business.” (Doc. 1070-43 at 2.) He said nothing about “blockers.”
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a cost-cutting measure that resulted in a significant headcount reduction for both older and younger
workers. The only context in which Plaintiffs cite evidence of Spirit discussing replacement of
“long service/high cost employees with new hires” was in the context of earlier proposals to save
money through voluntary retirement initiatives, not as part of the RIF that was designed to save
money by reducing the number of overall workers.
The uncontroverted facts show that even if Spirit HR “tightly controlled” the employee
rating process by using manager “calibration” to enforce consistent rating standards, by
emphasizing the criteria to be used in ratings, and by requiring that ratings fall into a mandatory
distribution, the company nevertheless identified individuals selected for the RIF through a
decentralized process of individual manager judgment. Plaintiffs make no showing that this
process was somehow a product of intentional age discrimination by Spirit. At most, they cite a
few random instances of manager disagreement with the philosophy of being required to identify
the lowest performers under their supervision. And, as discussed in more detail below, the
statistical impact of this decentralized decision-making process on older SPEEA workers fails to
rise to the level necessary to show that Spirit’s standard operating procedure involved age
discrimination.
Among other things, Plaintiffs single out Spirit’s decision to “designate” all C rated
employees in the retention exercise – which meant that SPEEA workers with 20-plus years did not
receive a bump in retention rating – as “powerful evidence of age-based intent,” arguing it was
“intentional, consequential, adverse treatment of older workers in a direct and obvious way.” (Doc.
1070 at 39.) It is true that Spirit had never before designated all C workers, but it is also true that
Spirit had never before engaged in a RIF. The CBAs gave Spirit discretion to designate C workers
in this manner, and presumably did so for the very reason Spirit said it used the option: because it
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wanted the primary factor for retention to be work performance rather than seniority. Moreover,
one of Spirit’s stated goals was to achieve a ten percent reduction in workforce. Tailoring the
retention rating to result in ten percent of workers receiving a C retention rating allowed Spirit to
focus the RIF on the C workers. If Spirit had allowed tenured workers to receive the retention
“bump” to a B rating, then eliminating the C workers would not have achieved the desired
reduction in headcount and would have required Spirit to develop additional criteria to determine
which subset of B workers would be added to the RIF to meet the workforce reduction goals.
Thus, designating all C workers prevented the tenure “bump” from frustrating and unnecessarily
complicating efforts to achieve the goal of a ten percent RIF. The prospect of receiving a retention
“bump” under the CBA no doubt raised the expectations of C-rated SPEEA workers with 20 or
more years’ experience that they would be spared from the RIF. Spirit’s designation dashed those
expectations, but Spirit was within its rights under the CBA to do so and, as a practical matter, the
effect of the designation was that all SPEEA workers – young and old alike – were subjected to
exactly the same standards for retention ranking and selection in the RIF. The fact that Spirit
designated all C-rated employees does not lend support to the allegation that Spirit engaged in a
pattern or practice of age discrimination. Cf. Pippin, 440 F.3d at 1197 (“Indeed, an employer ‘may
choose to conduct its RIF according to its preferred criteria of performance ... and we will not
disturb that exercise of defendant's business judgment.’” (citing Beaird v. Seagate Tech., Inc., 145
F.3d 1159, 1169 (10th Cir. 1998)).
Plaintiffs also complain that training materials provided by Spirit HR “contrasted a longtenured, lazy, and difficult ‘Gus’ with a newly hired, enthusiastic ‘John,’ implying John should be
rated more highly than Gus.” (Doc. 1070 at 8.) Aside from the remote likelihood that this particular
hypothetical had any material impact on Spirit managers ranking employees, the most that can be
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said of it is that it reiterated Spirit’s stated instructions that performance rather than tenure should
be the primary consideration for managers when rating employees.11 Apparently acknowledging
that the example itself is age-neutral (it mentions only an employee who is “a new member of your
team” and another who has been “in his job for 15 years with five different managers,” Plaintiffs
resort to complaining that it employed “classic stereotypes” about older workers. Plaintiffs cite the
testimony of Dr. Toni S. Locklear, an Industrial/Organizational Psychologist, who mentions such
stereotypes in offering opinions on “the validity, reliability, and fairness of the 2013 retention
exercise, including the 2012 performance exercise, used to identify employees for layoff.” (Doc.
1036-2 at 2.) Dr. Locklear concludes:
[T]he decision-making processes associated with Spirit’s July 2013 layoff were
inconsistent with characteristics of successful downsizing effort. The flaws detailed
[in the report] argue against the validity of the retention exercise used to identify
SPEEA employees for termination, as well as the performance ratings that informed
the retention exercise. Moreover, the lack of reliability in the criteria used to make
retention ratings, and the Company’s focus on age and tenure, could have opened
the door to biased judgments such as the consideration of legally protected
characteristics.
(Id. at 33.)
The court grants Defendants’ motion (Doc. 1036) to exclude Dr. Locklear’s testimony
under Daubert. As helpful as such analysis might be to organizations seeking guidance, the
opinions offered here are not based on a sufficiently reliable method to warrant their admission at
11
Plaintiffs and their experts grossly exaggerate the implications and potential effect of this hypothetical. Several of
their experts, including their economist Dr. Kaufman, single it out because “[t]hese case studies appear to indicate that
tenure should be considered in developing performance ratings,” and “[t]enure is typically correlated with age.” (Doc.
1042-2 at 12.) The suggestion that this single example in training materials somehow green-lighted hundreds of Spirit
managers into downgrading the ratings of older workers whose performance was equal to or better than that of younger
workers is based on rank speculation. The example makes clear that the one worker with more tenure not only “hates
change” and has a “negative attitude,” but also “his work product is not high quality,” he misses deadlines, doesn’t
work well with his peers, and he won’t help other workers. The example clearly describes a poor worker who should,
in contrast to “a new member of your team” whose “work product is always high quality and ahead of schedule” and
who otherwise is an ideal employee, be rated as a lower-tier employee. Again, at most the example conveyed a message
that tenure alone should not boost ratings of employees if their performance is poor. This was consistent with Spirit’s
entirely legitimate emphasis on the primacy of job performance in employee ratings.
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trial, nor would they be helpful to a jury’s understanding of the issues or in deciding the case.
“Fairness” is of course a highly subjective standard, and the court is not entirely sure how
Locklear’s opinions about the “validity” and “reliability” of the RIF process would assist the jury,
but the analysis offered is too subjective to warrant admission in this matter. Whether or not Spirit
conducted the RIF in accordance with Locklear’s idea of “best practices” is so tangential to the
issues as to be excludable under Fed. R. Evid. 403, as it would likely mislead or confuse the jury
in attempting to decide whether a pattern or practice of age discrimination has been established.
Plaintiffs also cite expert testimony from Professor Elizabeth Pendo, J.D., who thinks Spirit
“did not provide its management personnel with effective training or otherwise take sufficient
steps to address the risk of reliance of management on common stereotypes and assumptions
related to age, disability, or both,” and that this contributed to “a significant risk of discriminatory
decision-making, especially in the absence of effective training .….” (Doc. 1037-2 at 5.) Professor
Pendo’s report concedes that Spirit trained all employees including managers against prohibited
discrimination, including age discrimination, but believes they could have done more training
about avoiding common stereotypes and assumptions about older workers, and she invokes the
ubiquitous John and Gus as having fostered negative stereotypes about older workers. (Id. at 12.)
She also faults Spirit for using subjective evaluation criteria such as “leadership,” “dignity and
respect for all,” and “teamwork,” because subjective criteria “should be coupled with training to
reduce the risk that managers rely on common but impermissible stereotypes and assumptions
about older workers when making subjective judgments,” and “I did not see any evidence of such
training….” (Id. at 12-13.) It is undoubtedly true to say that Spirit could have provided more and
better training in almost any area, including on age discrimination. But this sort of negligence
analysis, aside from employing speculation about the impact of not giving more instruction on
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stereotypes, would be unlikely to assist the jury in its evaluation of Spirit’s actions. It would inject
possible confusion of the issues by asking the jury to “grade” Spirit’s thoroughness in training
instead of focusing on whether a policy of engaging in age discrimination actually existed. For
these reasons, Daubert would likely require exclusion of Pendo’s opinions, but even taking them
at face value, the assertion that Spirit’s failure to provide more stereotype training created a “risk”
of discriminatory results provides no reasonable support for a conclusion that Spirit in fact had a
“standard operating procedure” of engaging in age discrimination. Cf. Apsley, 691 F.3d at 1205–
06 (“Our role is not to determine whether the Companies’ hiring process could have been better,
but only whether a jury could discern from the evidence a pattern or practice of intentional age
discrimination.”) (citing EEOC v. Picture People, Inc., 684 F.3d 981, 989 (10th Cir.2012) (“[A]
court should not ‘act as a super personnel department that second guesses employers’ business
judgments.’”)). Thus, even if Pendo’s opinions are considered, they provide no material support
for a finding that Spirit engaged in a regular pattern or practice of age discrimination.
Plaintiffs also seek to introduce opinions from Pendo that Spirit’s decision not to buy
stoploss insurance “is consistent with Plaintiffs’ contention that in July 2013 Spirit attempted to
mitigate and reduce its exposure to high health claims by terminating disproportionate numbers of
older workers,” and with Plaintiffs’ contention that Spirit’s failure to rehire Plaintiffs “reflected a
company priority not to employ older workers the company assumed to have high health costs.”
(Doc. 1037-2 at 5.) The court grants Defendants’ motion to exclude these opinions under Daubert.
Plaintiffs essentially want to have a law professor second-guess the business judgment of Spirit
that it was more cost-effective to forego stoploss insurance than it was to purchase it. Stoploss
insurance may mitigate the risk of incurring large health expenses, as Pendo emphasizes, but it
obviously comes with a cost tradeoff in the form of a significant premium, and the failure to
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purchase it is hardly evidence of a plan to fire older workers. According to Pendo’s own report,
industry data showed that for companies of Spirit’s size with self-funded plans, only slightly more
than half elected to purchase stoploss insurance. (Doc. 1037-2 at 22.) Pendo indicates, however,
that Spirit’s choice is indicative of a plan to discriminate against older workers because the
company extensively examined health care costs and had already undertaken some steps to reduce
them, so a remaining way to reduce the risk of high costs would be to “reduce the number of
covered individuals who have (or are believed to have) high health care costs,” which “is consistent
with” Plaintiffs’ allegation that Spirit targeted older workers. This analysis is highly speculative
and does not rest on an objective or demonstrably reliable basis. It basically infers a discriminatory
purpose from the fact that the level of health care costs could be reduced by unlawfully terminating
older workers, while ignoring economic disincentives that weigh heavily against such a path,
including potentially enormous legal costs and the loss in quality of products from dismissing
highly qualified workers because of their age. In fact, Plaintiffs’ elaborate theory that Spirit’s
“obsessive” focus on health care costs drove its decision to conduct a RIF in the first place, that it
drove Spirit’s choice of which workers would be let go, and led to the subsequent failure to rehire
Plaintiffs, is built largely on speculation about this supposed economic incentive pertaining to
older workers. But the evidence about Spirit’s collection and examination of aggregate worker
data, including health care costs, shows no demonstrable connection to the rating and selection of
workers for the RIF, or to the failure to rehire former employees after the RIF.
“[G]ross statistical disparities ... alone may in a proper case constitute prima facie proof of
a pattern or practice of discrimination.” Apsley, 691 F.3d at 1195 (quoting Hazelwood Sch. Dist.
v. United States, 433 U.S. 299, 307–08 (1977)). See also Hazelwood, 433 U.S. at 308 n. 14 (citing
disparities of 5 and 6 standard deviations.) On the statistical front, Plaintiffs cite the opinions of
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Dr. Kaufman that Spirit’s 2012 PM ratings and 2013 retention rankings both resulted in statistically
significant age disparities disfavoring older workers. (Doc. 1070 at 39.) Kaufman said his analysis
“suggest[s] that the presence of age disparity in termination begins with disparately low
performance ratings, is magnified by disparities in retention rankings, then flows through to
termination outcomes.” (Doc. 1042-3 at 18.) The opinions offered by Kaufman, however, are not
sufficient, either alone or in combination with the other evidence cited, to show gross statistical
disparities that could establish a pattern or practice of age discrimination.
An initial concern with Dr. Kaufman’s analysis was his use of all Wichita Spirit employees
on the OWBPA disclosure list, both SPEEA and non-SPEEA workers, in measuring age disparities
in the RIF. Using a total population of 3,273 workers on Spirit’s OWBPA Disclosure List, of
whom 271 were selected for termination in the RIF, Kaufman performed various analyses and,
using a regression analysis, ultimately concluded the data showed a statistically significant
disparity of 3.03 standard deviations (SD) in terminations of older workers on the list. (Doc. 10422 at 23.) Although it is true that all of the employees on that disclosure list were in fact considered
for the layoff, which would ordinarily make the entire pool the relevant comparison, an integral
part of the justification for allowing Plaintiffs’ claims to proceed collectively in this case was their
alleged common status and treatment as SPEEA members,12 including their assertion that Spirit
rigged the 2013 retention exercise (applicable only to SPEEA workers) to disadvantage older
SPEEA workers. The relevant population for making inferences about the collective termination
claims as actually asserted, then, appears to be only SPEEA members on the OWBPA list,
exclusive of the more than 1,000 non-union workers who were not subject to the same retention
12
See Doc. 1034 at 46 n. 6 (citing Doc. 522) (“[T]he Named Plaintiffs assert a termination claim for themselves and
other former Wichita-based Spirit salaried workers, age 40 and older, who were represented by SPEEA and who were
terminated in July 2013.”)
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exercise and/or the same rating standards as SPEEA members. When Dr. Kaufman was challenged
by Dr. White on this point, Kaufman asserted that White took an “overly narrow view” of
relevance. (Doc. 1042-3 at 5.) Kaufman stated it had “been represented to me that the OWBPA
List is legally relevant” and it was “statistically relevant” because “my findings do not materially
change when I limit my analysis from the OWBPA List to the SPEEA employees identified as
relevant by Dr. White.” (Id.) Using only the population of SPEEA workers as suggested by White,
Kaufman performed a regression analysis with controls for Covered Leave and Discipline, that
concluded there was a disparity of 2.05 standard deviations in the proportion of older SPEEA
workers terminated in the RIF versus younger SPEEA workers. (Doc. 1042-4 at 10.)
The Supreme Court has said, “in the context of grand juror selection, that ‘[a]s a general
rule …, if the difference between the expected value and the observed number is greater than two
or three standard deviations, then the hypothesis that the jury drawing was random would be
suspect to a social scientist.’” Apsley, 691 F.3d at 1198 (quoting Castaneda v. Partida, 430 U.S.
482, 496 n.17 (1977). But “[s]tatistics must always be evaluated in the context of all of the
surrounding facts and circumstances.’” Id. at 1195 (quoting Teamsters, 431 U.S. at 340).
In connection with their termination claims, Plaintiffs rely on the statistical analysis
provided by Dr. Kaufman. Defendants have moved under Daubert to exclude Kaufman’s opinions.
(Doc. 1042.) The Daubert motion raises substantial questions about the methodology used by Dr.
Kaufman and whether it is closely tied to the facts of the case. The court notes Dr. Kaufman
acknowledged in his report that “Spirit instructed managers to rank employees utilizing the
following assessment criteria: performance rating, versatility, and criticality of skills.” (Doc. 10422 at 13.) Kaufman nowhere addressed versatility or criticality of skills in his reports – apparently
due to their subjectivity or the inability to statistically control for them – or how they may have
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impacted retention rankings or the selection process for the RIF. Whether subjective or not, such
facially neutral factors related to selection for the RIF could, absent explanation, account for a
level of age disparity in RIF selection. The uncontroverted facts also show that in the 2013
retention rating, employees were rated against other workers within their specific job codes (and
exempt or non-exempt status) or skill management codes, not as part of an overall pool of
employees. Although Dr. White examined those particular pools and found no significant age
disparities, Dr. Kaufman did not do so because “pooling on job code results in 151 pools,” an
average of less than 2 terminations per pool, and this “fragments the data” and results in a “very
weak test” that has a low chance of identifying disparities. (Doc. 1042-3 at 9.) While that may be
true as a matter of statistical analysis, the result is that the test used by Dr. Kaufman was not closely
tied to the actual manner in which the retention exercise was conducted.
Dr. Kaufman also extensively injected the concept of “Covered Leave” into his analysis, a
term he constructed as a proxy for employee medical costs covered by Spirit. This variable was
itself based on a rather complex set of assumptions and inferences and its purpose and place in the
statistical analysis of age disparities is unclear.13 It is apparently intended to suggest that a
correlation between taking covered medical leave and selection for the RIF somehow reinforces
an inference that older workers were targeted in the RIF. What is clear, however, is that the concept
of Covered Leave, or alternatively the actual medical costs incurred by SPEEA workers, played
13
Responding to White’s assertion that Kaufman improperly assumed that Spirit incurred medical costs for employees
who took Covered Leave, Kaufman asserted: “It is reasonable to assume that a share of leave is used for medical
reasons, and it is reasonable to expect that employees with a need for medical leave also insure [sic] medical costs. As
a self-insured firm, it is reasonable to expect that some of these costs would pass directly on to Spirit though [sic]
Spirit’s insurance coverages. Spirit was concerned about high medical costs related to age and certain medical
conditions. … While reasonable, this assumption is not needed to support my findings. My report finding is that there
is a ranking and termination disparity with respect to covered leave, not with respect to health care costs. However, I
do note that this disparity is not present for non-covered leave, and that this is consistent with an interpretation that
medical expense was a factor. This secondary finding of consistency does not require an assumption that covered
leave resulted in medical costs to Spirit.” (Doc. 1042-3 at 16.)
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no actual part in the retention rankings given by individual Spirit managers or in the RIF selections
at issue in this case.
Kaufman measured certain age disparities relating to 2012 PM ratings and 2013 retention
ratings but stated he did not do so for the purpose of connecting these disparities to the RIF. (Doc.
1042-3 at 13.) Rather, he said the purpose was to “demonstrate that age disparities exist in the
retention ranking process that is incremental to the disparity present in the performance
management process.” (Id. at 6.) Absent a connection to termination decisions, however, the
relevance of these other asserted disparities is not clear. He also limited his inquiries in significant
aspects. For example, on PM ratings he measured age disparities only for employees who had
rating reductions from 2010 to 2012 (and did not measure overall age disparities in the assignment
of ratings) and also excluded the impact of 2010 PM ratings, where older workers may have had
(and apparently did have) significant rating disparities in their favor. On the 2013 retention ratings,
he measured disparities in C rankings that were assigned only to “Low-Rated” employees (i.e.,
Meets Some, Unacceptable), excluding a number of employees who were given Cs despite having
PM ratings in the middle category (i.e., Meets). He asserted that he did so because Spirit’s
documents showed it was seeking to identify low rated employees, and “[t]his leads to a reasonable
conclusion that Spirit’s termination practices for low rated employees differ from Spirit’s
termination practices for employees assigned a ‘Meets’ performance rating,” which is “borne out
by differences in termination rates across rating scores,” and as such it was “necessary to control
for performance rating when evaluating terminations.” (Doc. 1042-3 at 14.) Thus, he said, the
“Meets” category was left out to control for performance rating when evaluating terminations. (Id.)
But unlike performance ratings, retention ratings and selection for the RIF took into account factors
other than performance that were not controlled by this analysis. So, an unidentified number of
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workers may have been selected for the RIF although their performance was fair (i.e., “Meets”)
because their skills were not deemed critical or they were less versatile than others in the group.
Dr. White’s analysis asserted that if age differences were examined looking at all three
performance categories from which terminations actually occurred, including Meets, there was no
significant age disparity.
Whether or not these methodological issues warrant exclusion under Daubert, they weaken
the significance of Dr. Kaufman’s findings that there were age disparities in the RIF. Leaving
aside resolution of any Daubert issues concerning Dr. Kaufman’s analysis, the court concludes
that Dr. Kaufman’s opinions, under all of the circumstances and considered together with
Plaintiffs’ other evidence, do not reasonably show that Spirit had a regular procedure or policy of
age discrimination.
A disparity of 2.05 standard deviations in this context, or even the 3.03 standard deviations
identified by Kaufman in his initial report, is not, under all of the circumstances, a gross disparity
of the sort that would reasonably support a finding that Spirit employed a pattern or practice of
age discrimination. In Apsley, for instance, the Tenth Circuit rejected a pattern or practice claim
despite expert testimony about disparities of more than 5 standard deviations in the number of
older workers predicted to be recommended for hire versus the number actually recommended. Id.
Here, Dr. Kaufman expressed termination disparities in terms of standard deviations, but the bulk
of his analysis appears tangential or even irrelevant to the termination issue and his reports do not
explain or make clear the actual number of older workers he believes would have been included
in the RIF had the selection been random versus how many actually were selected. Dr. White,
using the SPEEA workers on the OWBPA list and controlling for skill management code and job
code, determined that about 178 workers age 40 or over would be expected to be selected for the
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RIF if it were a neutral selection free of age discrimination, while 185 were in fact selected, a
difference of less than 8 persons, which he concluded was not statistically significant (1.32 SD).
(Doc. 1041-120 at 8.) This was based on 185 of 1,832 older SPEEA workers on the list being
selected for the RIF and 36 of 464 younger SPEEA workers being selected. His number changed
only slightly (to a difference of about 11 persons (1.80 SD)) when the list of all OWBPA workers
was considered. (Id. at 10.) Dr. Kaufman applied a different analysis, of course, included different
controls, and as indicated above ultimately found a variance of about 2 or perhaps 3 standard
deviations from a neutral selection. As indicated, Kaufman did not discuss the predicted versus
actual number of persons selected for the RIF, instead discussing the “odds ratio” of older versus
younger workers being selected, the number of standard deviations involved, and whether the
finding was statistically significant. (See Doc. 1042-2 at 12.) But regardless, it is clear that the
absolute difference between the number of older workers who were actually selected in the RIF
and the number that would have been expected in a neutral selection is quite small, perhaps as few
as 7-11 persons out of the 1,832 SPEEA workers considered for the RIF and of 221 who were
ultimately selected. When considered in the context of the ranking process actually used by Spirit,
which involved rating decisions by a multitude of different managers, and the unmeasured impact
of rating criteria such as criticality and versatility, the disparities identified by Plaintiffs’ expert
are not the type of gross disparities that reasonably show Spirit had in place a pattern or practice
of age discrimination within the meaning of Teamsters.
The uncontroverted facts show it was rumored that Spirit was going to target older and
sicker workers in the RIF. Plaintiffs have constructed a narrative around that theory based largely
on an expert opinion showing at most a moderate disparity in the proportion of older versus
younger workers selected for the RIF, and an assortment of corporate cost assessments and
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projections relating to employees. Plaintiffs claim a “standard operating procedure” of
discrimination at Spirit when, out of a workforce numbering in the thousands, Spirit ultimately
included perhaps 11 more older workers than would have been predicted from a neutral selection.
The practical insignificance of this type of disparity is due in part to the unknown impact of rating
criteria such as criticality and versatility – which managers were specifically told to factor into
their retention ratings – that could easily account for a modest disparity. A number of individuals
selected for the RIF may have been equal to others in performance but were thought by their
managers to lack a broad range of skills that made other employees slightly more valuable to the
group. Other variables not assessed by Kaufman included the particular retention groups into
which employees fell and differences in the managers who assigned ratings. Such variables could
account for the modest statistical variations shown by Plaintiffs. Cf. Rea v. Martin Marietta Corp.,
29 F.3d 1450, 1456 (10th Cir.1994) (“[F]or statistical evidence to create an inference of
discrimination, the statistics must ... eliminate nondiscriminatory explanations for the disparity.”)
(citation omitted.) Aside from this statistical evidence, there is a complete lack of evidence
showing that Spirit has any history, recent or otherwise, of engaging in age discrimination against
its workers. No individuals acts of age discrimination, let alone a pattern of such conduct, is cited
in the evidence. Based on the uncontroverted facts, Defendants are entitled to summary judgment
on Plaintiffs’ collective claims that their terminations were attributable to a pattern and practice of
intentional age discrimination at Spirit.
2. Termination Claim - Disparate Impact.
Plaintiffs’ disparate impact termination claim, according to their summary judgment
response, is premised upon Spirit’s “adoption of a bell curve for PM ratings.” (Doc. 1070 at 55.)
This policy, which was newly adopted or enforced by Spirit in connection with its 2012 PM ratings
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process, forced managers to rate performance across five specified levels (Exceptional, Exceeds,
Meets, Meets Some, Unacceptable) within a never-before-imposed 15%-70%-15% distribution.
This required that a total of 15% of employees be rated in the lowest two categories. Plaintiffs
contend Dr. Kaufman’s analysis shows the policy had a disparate impact on older workers, because
older workers were more likely to be downgraded from the 2010 PM ratings to the 2012 PM
ratings. Plaintiffs assert Dr. Kaufman further found lower-ranked older employees were twice as
likely to receive a C retention rating (as compared to younger lower-ranked workers), and “that
the resulting C rankings were directly correlated with layoff decisions.” (Doc. 1070 at 56.)
According to Plaintiffs, “[t]his proof that a specific piece of the PM process and a specific 2013
RIF component cause an age-disparate impact satisfies Plaintiffs’ prima facie case.” (Id.)
The Tenth Circuit outlined the framework for disparate impact ADEA claims in Fulghum
v. Embarq Corp., 785 F.3d 395 (10th Cir. 2015):
Disparate impact claims are grounded in the premise that “some employment
practices, adopted without a deliberately discriminatory motive, may in operation
be functionally equivalent to intentional discrimination.” Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988).
Accordingly, “a claim for disparate impact [does not] require proof of intentional
discrimination.” Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685
F.3d 917, 922 (10th Cir.2012). A plaintiff asserting a claim of disparate impact
discrimination can make out a prima facie case by demonstrating the challenged
employment practice caused a disparate impact on the protected group. Tabor v.
Hilti, Inc., 703 F.3d 1206, 1220 (10th Cir.2013). “Statistical evidence is an
acceptable, and common, means of proving disparate impact.” Id. at 1222
(quotation omitted).
The framework applied to ADEA disparate impact claims differs from that applied
to Title VII disparate impact claims because the “scope of disparate-impact liability
under ADEA is narrower than under Title VII.” Smith, 544 U.S. at 240, 125 S.Ct.
1536. This is so because the ADEA “contains language that significantly narrows
its coverage by permitting any ‘otherwise prohibited’ action ‘where the
differentiation is based on reasonable factors other than age.’” Id. at 233, 125 S.Ct.
1536 (quoting the ADEA). Thus, although a Title VII defendant has the burden of
producing evidence of a “business necessity” for the challenged employment
practice, an ADEA disparate-impact defendant need only produce evidence the
practice is based on “reasonable factors other than age” (“RFOA”). Id. at 241–43,
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125 S.Ct. 1536; see also id. at 238–39, 125 S.Ct. 1536 (noting the RFOA provision
is inapplicable when an ADEA plaintiff proceeds under a disparate treatment
theory). “Unlike the business necessity test, which asks whether there are other
ways for the employer to achieve its goals that do not result in a disparate impact
on a protected class, the reasonableness inquiry includes no such requirement.” Id.
at 243, 125 S.Ct. 1536. At trial, the ADEA defendant must persuade the factfinder
its reasonableness “defense is meritorious.” Meacham v. Knolls Atomic Power
Lab., Inc., 554 U.S. 84, 101, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008).
(Id. at 418.)
As Defendants point out, it was not at all clear prior to the filing of Plaintiffs’ summary
judgment response that their disparate impact claim was premised on Spirit’s adoption of a bell
curve distribution policy for the 2012 PM ratings.14 Plaintiffs now contend that the adoption of
this policy had a disparate impact on older SPEEA workers being selected for termination in the
RIF because Dr. Kaufman’s analyses “suggest that the presence of age disparity in termination
begins with disparately low performance ratings, is magnified by disparities in retention rankings,
then flows through to termination outcomes.” (Doc. 1042-3 at 18.) This “daisy chain” theory of
causation, as Defendants describe it, raises potential hurdles, including Defendants’ argument that
Plaintiffs failed to timely exhaust this particular claim before the EEOC, as well as whether
Plaintiffs’ proof has isolated the bell curve requirement in 2012 PM ratings as the cause of disparity
in terminations, as opposed to other factors such as the mandatory distribution of retention rankings
under the CBAs.
After considering the nature of Plaintiffs’ claim in light of the evidence and arguments
presented, the court concludes that this claim fails as a matter of law for two reasons. First, even
assuming Plaintiffs have timely exhausted the claim, Plaintiffs have failed to cite evidence
isolating the mandatory distribution of 2012 PM ratings as the cause of the alleged disparity in
14
Neither the First Amendment Complaint nor the pretrial order identified the bell curve distribution policy as the
basis for the ADEA collective disparate impact claim.
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dismissal of older workers in the RIF. Second, Defendants are entitled to summary judgment
because the record shows that Spirit’s use of a bell curve distribution in performance evaluations
was a “reasonable factor other than age.”
“To establish a prima facie case of disparate impact discrimination on the basis of age,
plaintiff must show that a specific identifiable employment practice or policy caused a significant
disparate impact on the protected group.” Leo v. Garmin Int'l, No. 09-CV-2139-KHV, 2009 WL
3122502, at *4 (D. Kan. Sept. 24, 2009) (citing Carpenter v. Boeing Co., 456 F.3d 1183, 1187
(10th Cir.2006)). “Thus, an employee must point to both a significant disparate impact and a
particular policy or practice that caused the disparity.” Id. (citing Pippin Burlington Res. Oil &
Gas, 440 F.3d 1186, 1200 (employee must isolate and identify specific employment practices
allegedly responsible for observed statistical disparities)). See also Smith v. City of Jackson, Miss.,
544 U.S. 228, 241 (2005) (in disparate impact case, the employee is “‘responsible for isolating and
identifying the specific employment practices that are allegedly responsible for any observed
statistical disparities.’”) (citation omitted.)
Plaintiffs’ reliance on Dr. Kaufman’s analysis fails to satisfy their burden of isolating and
showing that the bell curve distribution required in 2012 PM ratings was the cause of statistical
disparities in the RIF. As an initial matter, Dr. Kaufman’s identification of a statistical disparity in
reduced PM ratings for older workers between 2010 and 2012 does not appear to specifically
identify use of the 15-70-15 mandatory distribution as the specific cause of any disparity.
Moreover, it was the 2013 retention exercise that actually identified the C-rated workers selected
in the RIF, not the 2012 PM ratings, and it is uncontroverted that three factors were considered by
managers in assigning those retention rankings: performance (both 2012 PM ratings and 2013
performance), versatility, and criticality. As indicated previously, Dr. Kaufman did not consider
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or address any disparity in terminations caused by consideration of 2013 performance, by
versatility, or by criticality. His opinion that age disparities in 2012 PM ratings changes “flow[ed]
through” to termination outcomes does not attempt to specifically isolate the impact of the bell
curve distribution in 2012 PM ratings on terminations.15 Pippin, 440 F.3d at 1200 (“it is not enough
to simply allege that there is a disparate impact on workers, or point to a generalized policy that
leads to such an impact.”) (citation omitted); Meacham, 554 U.S. 84, 100–01 (2008) (plaintiff must
isolate and identify the specific employment practice responsible for any observed statistical
disparity, otherwise employers could be liable for “the myriad of innocent causes that may lead to
statistical imbalances.”) (quoting Smith, 544 U.S. at 241) (citation omitted.) Plaintiffs have failed
to cite evidence from which a jury could reasonably conclude, without resorting to speculation,
that adoption of a mandatory 15-70-15 distribution for 2012 PM ratings caused a disparate impact
in the selection of workers for the RIF.
Even if Plaintiffs had made a prima facie showing of causation, the record shows beyond
reasonable dispute that requiring a bell curve distribution in performance ratings was a reasonable
factor other than age. Spirit has accordingly shown it is entitled to judgment based on that factor.
See Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008) (RFOA is affirmative defense that
defendant must establish). As noted above, it is not unlawful for an employer to adopt a policy
with a disparate impact “where the differentiation is based on reasonable factors other than age….”
29 U.S.C. § 623(f)(1). Plaintiffs argue Defendants have not shown that its use of a mandatory
distribution in PM ratings was reasonable because “Spirit fails to identify a specific business
purpose” for the policy, fails to explain how it relates to a goal of retaining its best workers, fails
to show it provided sufficient training on how to rate performance rather than relying on age-based
15
As Defendants point out, about 85% of employees who experienced lowered PM ratings in 2012 did not have a low
PM or C retention rating. (See Doc. 1041 at 12-13.)
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stereotypes, it “heard from managers and HR personnel regarding concerns about impacts of the
new PM policy,” and it fails “to produce any evidence showing it assessed the impact of the bell
curve based on age or took any steps to reduce the harm it caused to older workers.” (Doc. 1070
at 57-58.)
Spirit has cited evidence that at times in the past, including in 2010, its PM ratings suffered
from “grade inflation,” with a large percentage of workers rated in the top categories. Spirit cites
evidence that it adopted the policy of requiring a 15/70/15 distribution in PM ratings to force
managers to identify lower-performing employees. HR training materials provided to managers
for the 2012 PM ratings emphasized the need to accurately rate performance and specifically
identified common mistakes such as grade inflation, “nice guy effect” (rating on personality rather
than performance), and “central tendency” (rating people in the middle because it is easier than
identifying the top and bottom performers). (Doc. 1080-8 at 14-18.) The adoption of a mandatory
ranking distribution under these circumstances was entirely reasonable. Ranking employees based
on their relative job performance is a legitimate business objective and requiring a mandatory
distribution of ratings to differentiate between top, middle, and lower performers is clearly a
reasonable method of furthering that objective. Cf. Pippin, 440 F.3d at 1201 (“Corporate
restructuring, performance-based evaluations, retention decisions based on needed skills, and
recruiting concerns are all reasonable business considerations.”) Moreover, in the context of
Spirit’s efforts to reduce headcount at its Wichita facility as a way to control costs, Spirit had a
legitimate business imperative in identifying its lower-performing workers, and the mandatory
distribution requirement for PM ratings furthered that objective. Courts have recognized that
“relying on prior performance ratings and the determination of which employees have the skills
most useful to the company going forward are reasonable criteria for any company to use in
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deciding which employees to keep and which to let go in a RIF.” Pippin, 440 F.3d at 1201.
Contrary to Plaintiffs’ suggestions, the mandatory distribution was reasonable in light of these
business objectives and Spirit in fact instructed managers on the need to avoid unlawful
discrimination in the assignment of PM ratings. Plaintiffs fault Spirit for failing to produce
evidence that it considered the potential disparate impact of the 15/70/15 policy on older workers
before adopting it, but even if true, such a fact does not render this policy unreasonable in light of
the other factors noted above, including the obvious relation of the policy to a legitimate business
objective. Fitzpatrick v. Newmont Mining Corp., No. 13-CV-03409-PAB-CBS, 2015 WL
1809981, at *6 (D. Colo. Apr. 17, 2015) (noting no case authority that the RFOA provision requires
an employer to consider the impact of the challenged practice on employees over 40 years of age
or that the failure to do so renders a stated rationale unreasonable).
The court notes that Plaintiffs offer no alternative method by which Spirit could have
ensured that its top, middle, and lower-tier performers were identified in PM ratings. No doubt
there were other possibilities available. But under the ADEA, which only requires that Spirit’s
chosen method not be based on age and be “reasonable,” the use of such a required distribution in
performance rankings had a reasonable basis and therefore was not unlawful. Cf. Smith, 544 U.S.
at 243 (“While there may have been other reasonable ways for the City to achieve its goals, the
one selected was not unreasonable. Unlike the business necessity test, which asks whether there
are other ways for the employer to achieve its goals that do not result in a disparate impact on a
protected class, the reasonableness inquiry includes no such requirement.”)
Defendants’ motion for summary judgment as to Plaintiffs’ collective termination claim
for disparate impact under the ADEA is accordingly GRANTED.
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3. Pattern or Practice Hiring Claim – Disparate Treatment
Plaintiffs’ final collective claim alleges that Spirit intentionally discriminated against them
in rehiring, on account of age, by deciding before the layoff not to rehire any laid off workers, by
tagging laid-off worker applicants as “AP-Hold,” thereby “precluding their advancement through
the hiring process,” and by telling laid off applicants to apply for jobs online while withholding
the fact their applications would be classified as “AP-Hold.” (Doc. 1034 at 11-12.) Additionally,
Plaintiffs contend a statistical analysis shows “the odds of staying in [AP-Hold] was 145 times as
high for [the laid off] applicants,” and “applicants 40 and over had only 76% the odds of a
successful initial screening as under 40 applicants.” (Id. at 12.)
Defendants seek summary judgment on the claim, arguing the uncontroverted facts show
that Spirit followed age-neutral hiring policies and processes, and that it has no discriminatory
standard operating procedure to reject job candidates based on age. (Doc. 1041 at 52.) With regard
to Plaintiffs’ statistical analysis, Spirit contends the analysis of Plaintiff’s expert Dr. Bardwell is
inadmissible and without probative value. Even if Bardwell’s analysis is considered, Spirit
contends it rebuts the suggestion of a discriminatory pattern or practice with its own analysis
showing that Spirit selected older employees at statistically neutral rates. (Id. at 60.) Spirit
additionally argues that even if Plaintiffs could establish a pattern or practice of age discrimination,
Plaintiffs’ claims would still fail at the second stage of Teamsters, because Spirit can show the
Hiring Plaintiffs would not have been hired for a variety of individual reasons. Finally, Spirit
contends that some Plaintiffs’ claims have not been properly exhausted.
Plaintiffs contend a “reasonable fact-finder could easily conclude that Spirit decided not to
rehire the older workers subject to the 2013 RIF based on the same discriminatory animus that led
to their initial terminations.” (Doc. 1070 at 48.) Among other things, Plaintiffs point to evidence
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of Spirit’s comments indicating it did not want to rehire workers let go in the RIF, its reliance on
the system that screened out former employees and put them in AP-Hold status, and other evidence
allegedly showing that Spirit “implemented a policy and practice of age discrimination that its
executives worked hard to conceal.” (Id. at 49.) Plaintiffs contend the “failure to hire or even
consider Plaintiffs for these open positions was a fundamental part of the plan to ‘replace long
tenured employees with new hires,’ the heart of the pattern or practice of discrimination here.”
(Doc. 1070 at 50.) They contend their statistical expert has shown that Spirit’s post-RIF hiring
“disadvantaged older applicants because a disproportionate share of employees terminated during
the July [2013] RIF were age 40 and above.” (Id.)
As the court noted previously, at the first stage of a pattern or practice claim a summary
judgment motion “must focus solely on whether there is sufficient evidence demonstrating that
defendants had in place a pattern or practice of [age] discrimination during the relevant limitations
period.” Thiessen, 267 F.3d at 1109.
On their claim that Spirit failed to rehire them as part of a pattern or practice of intentional
discrimination based on age, Plaintiffs first invoke “the same discriminatory animus” involved in
their initial terminations. (Doc. 1070 at 48.) That evidence, however, fails to show a pattern and
practice of age discrimination largely for the reasons previously discussed. Plaintiffs have made
no showing of a Spirit history of engaging in age discrimination, no evidence that it has used
facially discriminatory policies, cited no individual instances of Spirit management engaging in
age discrimination, while at the same time citing only a modest statistical disparity in the selection
of older SPEEA workers in the RIF, with the selection resulting from a process in which hundreds
of individual managers made the decisive rating determinations.
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As evidence of age discrimination animus relating specifically to hiring (or rehiring),
Plaintiffs cite a comment by one Spirit representative in February 2013 that, “Everyone we send
out through layoff we will not want them back….” (Doc. 1070 at 48.) This stray comment – whose
context is unclear16 – hardly shows an intent to discriminate on the basis of age. Along the same
lines, Plaintiffs argue that evidence of Spirit’s resistance to rehiring laid off workers is evidence
of age-based animus. The record, however, shows that Spirit was reluctant to rehire workers let go
in the RIF because they had been identified as being in the lower echelon of performers. In VP
Justin Welner’s deposition, for example, Welner explained why Spirit did not prohibit the rehire
of employees from the RIF altogether but was nevertheless disinclined to rehire them:
Q For people that were terminated in July of 2013,
do you know what criteria were used to determine
whether or not they were good employees that could
be rehired?
A So in 2013 when we did the reduction in
July/August timeframe, that was the bottom
10 percent from a performance and capability
standpoint. We used the process in the collective
agreement to go through the retention process.
And so that's the -- the process we used.
Q So given that they were considered to be the
bottom 10 percent, did you not want to rehire
those individuals?
A So we did not make them ineligible for rehire. In
fact, we -- we actually had a conversation about
how to apply that and chose not to go down that
route.
Q Can you explain what you mean by that?
A Sure. So if you -- again, I know you're only
talking about Wichita. But if you look at our
release and severance agreements in Oklahoma, they
included a not-eligible-for-rehire clause. We
16
The statement is part of an email discussing an alternative proposal to performance exits, including a layoff, in
which the email author alludes to language in the proposal (which is not set forth in the email) and “wonder[s] if we
should strengthen the language a bit in the feb. box where we indicate performance exits and all others remaining will
be placed on performance plans. There is the possibility before we get through the entire retention process we still exit
a few for performance earlier. Everyone we send out through layoff we will not want them back, does the designated
candidate limit us at all, I don’t remember that piece of the discussion.”
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chose not to do that in Wichita with this group.
And the reason we chose not to do that was these
groups are represented by a union, and my concern
was if we included a not-eligible-for-rehire
clause, that unions would work against us and
encourage people not to accept the severance and
not to sign the release.
Q So that clause was left out in order to ensure
that people signed the release of claims for
the -- and received severance from the company.
A It was included to give us the best chance of
having people accept the severance offer and sign
the release.
Q Okay. But you indicated that because that
reduction was the bottom 10 percent, that those
are individuals that the company might not want to
bring back, correct?
A I just said they were the bottom 10 percent. But,
you know, in theory, you're correct. It's the
bottom 10 percent. We paid a -- a generous
severance agreement to exit them. We generally
would not be looking to bring them back.
(Doc. 1070-34 at 2-3.) (See also Doc. 1041-111)(Spirit HR representative cautioning that before
rehiring RIF’d workers, Spirit should perform “due diligence” and “vet the reason they were a
designated C and [ensure] there are not past performance concerns,” because the company “paid a
lot of money to get them out the door and we should not be passing up an opportunity to ‘upskill’
and get the right talent in the door.”) The evidence thus clearly shows that Spirit was reluctant to
rehire Plaintiffs and other SPEEA workers let go in the RIF, but Plaintiffs cite no evidence that
this reluctance was attributable to age-based animus, as opposed to arising from performancebased concerns.
It is also clear from the uncontroverted facts that Spirit’s policy of applying AP-Hold status
to any applications submitted by former employees, including Plaintiffs, was the principal reason
their applications, with some ad hoc exceptions, went unreviewed and unprocessed. Plaintiffs do
not dispute that the AP-Hold process had been in place since 2009, well before the events at issue
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here, but contend evidence of “a written objective to ‘replace long-tenured employees with new
hires,’” in light of subsequent events, provides “powerful evidence of a policy of age
discrimination, stemming back to the goals of the July 2013 RIF and continuing through the AP
Hold, which played a central role in the discriminatory acts here.” (Doc. 1070 at 52.) This attempt
to show that application of the AP-Hold policy to their applications resulted from a plan by Spirit
to discriminate against older workers is highly speculative and ultimately fails to meet Plaintiffs’
burden to establish that Spirit engaged in a pattern or practice of age discrimination. Spirit’s written
comment about “replacing long-tenured employees with new hires” was, as examination of the
underlying document and the portion of the quotation omitted by Plaintiffs shows, made in the
context of an October 2012 Spirit HR proposal to reduce costs in part by offering early retirement
incentives to Spirit’s employees (company-wide) over the age of 62: “Replace long/service/high
cost employees with new hires by offering a Voluntary Separation Package.” (Doc. 1080-7 at 3)
(underlining in original). The initiative also discussed several other ways to reduce costs without
resorting to a layoff by “aggressively” managing overhead and salaried workforce, noting in an
accompanying section that the company was currently “636 Heads over budget with 622 Open
Requisitions.” (Id. at 4.) The initiative also discussed aggressively managing performance
separations, stating Spirit should have “at minimum 2.2% or 138 employees not meeting
expectations [on PM ratings] based on the standard, normal distribution,” while “most
performance models would indicate we should have at least 5% (314EEs) with an additional 15%
(942EEs) only partially meeting expectations.” (Id. at 2.) Against that background, the initiative
noted the company had opened only 89 performance coaching plans, generating only “38
terminations including retirements,” which had affected only 0.06% of employees. (Id.) The failure
of the plan to use retirement incentives and performance separations to reduce headcount, of
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course, led to Spirit’s decision to conduct a RIF. But its contemplation of replacing long-service
employees with new hires in the context of a voluntary retirement incentive, as indicated above,
provides no evidence of an intent to unlawfully discriminate on the basis of age.
Plaintiffs’ attempt to spin this into evidence that Spirit had an ongoing pattern or practice
of engaging in age discrimination rests more on speculation than evidence. On their termination
claim, Plaintiffs failed to show a causal connection between Spirit’s purported plan to discriminate
and the actual selection of employees for the RIF through the ratings of individual managers. Here,
Plaintiffs fail to demonstrate any discriminatory intent on Spirit’s part in its application of APHold status to job applications submitted by any former employees, including Plaintiffs. The policy
itself is facially age-neutral and no evidence is cited that Spirit applied it to Plaintiffs as a result of
age-based animus. Spirit has cited evidence that the policy of putting terminated employees on a
hold status was related to legitimate business objectives, both because it ensured that any
previously-terminated applicants would be vetted before being rehired and, as Welner noted, it
furthered the company’s interest in obtaining high-performing workers, because the persons let go
in the RIF had been identified as the bottom ten percent of performers. Noting Spirit’s assertion
that it made logistical sense to apply this policy to former employees, Plaintiffs argue this assertion
is “implausible” and forms a fact question that should be resolved by a jury. (Doc. 1070 at 53.)
But it is Plaintiffs’ burden initially to establish that engaging in age discrimination was Spirit’s
“standard operating procedure,” and Plaintiffs have failed to cite any evidence showing a plan or
practice of discrimination by Spirit generally, or any evidence specifically showing that application
of the AP-Hold policy to RIF’d employees was the product of some discriminatory intent or
practice.
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Against this dearth of other evidence, Plaintiffs put forth the analysis of a statistician, Dr.
Robert A. Bardwell, Ph.D., who was “retained … to evaluate the applications for positions with
Spirit submitted by employees separated in the July RIF.” (Doc. 1046-2 at 3.) Plaintiffs point out
that Dr. Bardwell concluded Plaintiffs were “disadvantaged by being stranded in the Applicant
Held Pool” resulting in statistically significant reduced chances of “success in Spirit’s hiring
process” and that Spirit’s post-RIF hiring “also disadvantaged older applicants because a
disproportionate share of employees terminated during [the RIF] were age 40 and above.” (Doc.
1070 at 50) (quoting Doc. 1046-2 at 4).
It is undisputed on the record that for some years prior to 2013, every Spirit applicant had
to complete an online application and that any applicant identifying as a “former employee” was
designated as being in AP-Hold status. That designation meant the application was on hold unless
it was manually reviewed, such as when a manager requested help filling a particular requisition.
There is no evidence this policy was adopted due to discriminatory animus or that it was applied
with a discriminatory purpose to Plaintiffs. It was obviously facially neutral; it applied to all
SPEEA workers who were terminated in the RIF, young and old alike. Dr. Bardwell’s analysis
concluded, and it is undoubtedly true, that being placed in AP-Hold status disadvantaged Plaintiffs
in hiring relative to other applicants who were not former employees and whose applications were
not stayed in this manner. (See Doc. 1046-2 at 14) (“Spirit employees terminated in the July RIF
were not provided the same opportunity to be rehired as other Spirit employees or outside
applicants,” and this “disparity resulted from placing July Riffed employees disproportionately in
the Applicant Hold Pool….”) But Dr. Bardwell’s analysis, if not entirely “irrelevant” as argued by
Defendants, is insufficient to permit any inference that Spirit had a pattern or practice of age
discrimination. The adoption of an age-neutral policy prior to the contemplation of the RIF, which
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was applied to all former Spirit employees who left the company for whatever reason, and which
allegedly had an adverse impact on older workers only because they were let go in the RIF in a
somewhat greater proportion than younger workers, does not reasonably suggest that Spirit had a
policy and practice of intentional age discrimination in hiring. And for reasons previously
discussed, the statistical analysis in combination with Plaintiffs’ other evidence likewise fails to
establish the prima facie case of discrimination required by Teamsters.
IV. Conclusion
Plaintiffs’ motion for final certification of a collective action (Doc. 1035) is GRANTED;
Defendants’ motion to strike the collective claims and to decertify (Doc. 1044) is DENIED.
Defendants’ motion to exclude testimony of Dr. Toni Locklear (Doc. 1036) is GRANTED.
Defendants’ motion to exclude testimony of Elizabeth Pendo (Doc. 1037) is GRANTED IN PART
and DENIED IN PART. Defendants’ motion to exclude testimony of Dr. Lance Kaufman (Doc.
1042) is DENIED AS MOOT. Defendants’ motion to exclude testimony of Dr. Kevin Cahill (Doc.
1043) is GRANTED and its motion to strike (Doc. 1090) is GRANTED. Defendants’ motion to
exclude testimony of Dr. Robert Bardwell (Doc. 1046) is DENIED AS MOOT.
Defendants’ motion for partial summary judgment (Doc. 1040) is GRANTED. Plaintiffs’
collective ADEA claims are DISMISSED on the merits. Plaintiffs’ individual claims are not at
issue in this ruling and remain pending.
IT IS SO ORDERED this 16th day of May, 2023.
_____s/ John W. Broomes__________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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