Raymond et al v. Spirit AeroSystems Holdings, Inc. et al

Filing 411

MEMORANDUM AND ORDER denying 387 Plaintiffs' Motion to Certify Order for Interlocutory Appeal; granting 394 Plaintiffs Motion for Leave to File a Reply. Signed by District Judge John W. Broomes on 4/30/2019. (mam)

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.,
et al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on Plaintiffs’ motion to certify the court’s
Memorandum and Order filed December 17, 2018, for interlocutory appeal. (Doc. 387.) The
motion is fully briefed. (Docs. 388, 390, 394-1.1) For the reasons state herein, the motion to
certify is DENIED.
I. Background
Plaintiffs allege that Spirit2 discriminated against them in violation of the Age
Discrimination in Employment Act (ADEA) by terminating their employment in a reduction-inforce (RIF), and by refusing to rehire them for new job openings. Plaintiffs bring both a collective
action and individual ADEA claims, and some Plaintiffs also assert claims under the Americans
with Disabilities Act (ADA) and/or the Family Medical Leave Act (FMLA).
The parties agreed to conduct the litigation in two phases, with the first phase addressing
the validity of ADEA waivers signed by some Plaintiffs at the time of the RIF. (See Doc. 153 at

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The court grants Plaintiff’s motion for leave to file a reply (Doc. 394) and considers the attached reply brief (Doc.
394-1) in deciding the instant motion.
2
The named Defendants are Spirit Aerosystems, Inc. and Spirit Aerosystems Holdings, Inc. They are referred to here
collectively as Spirit.

1-2.) In a Memorandum and Order filed December 17, 2018, the court ruled on the parties’ crossmotions for summary judgment relating to the waivers. (Doc. 385.) As to those Plaintiffs who
had signed the waivers and conceded they had received a 65-page disclosure list from Spirit
pursuant to the Older Workers Benefit Protection Act (OWBPA), the court found the waivers were
knowing and voluntary, meaning Spirit was entitled to summary judgment on ADEA claims
covered by the waivers. (Id. at 38.) The court found a genuine issue of fact remained with respect
to eight Plaintiffs who claimed they had not received the 65-page OWBPA disclosure list from
Spirit.
Plaintiffs ask the court to certify that order for an interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b). They argue the order addressed two issues of controlling law on which there is
substantial ground for difference of opinion and as to which an immediate appeal would materially
advance the litigation. It identifies the two issue as: 1) the meaning of “eligibility factors” under
29 U.S.C. § 626(f)(1)(H)(i); and 2) whether the “decisional unit” in 29 C.F.R. 1625.22(f)(3)(ii)(D)
includes groups of individuals “categorically excluded from the reduction in force….” (Doc. 388
at 6.) Plaintiffs argue there is conflicting case law on the meaning of “eligibility factors,” and that
the scope of the “decisional unit” presents a novel and debatable legal question. Plaintiffs contend
both of these are controlling questions of law because they are determinative of the validity of the
waivers. Plaintiffs argue an immediate appeal would further judicial economy and advance the
litigation because it would avoid the prospect of duplicative discovery, it would avoid the risk of
multiple trials on similar issues, it would clarify OWBPA standards for employers and employees,
and it would benefit those Plaintiffs who have serious health conditions or other circumstances
that favor a prompt determination of the validity of their waivers. (Id. at 15-17.)

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II. Section 1292(b) standards
The statute governing Plaintiffs’ motion provides:
When a district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of such action may thereupon,
in its discretion, permit an appeal to be taken from such order, if application is made
to it within ten days after the entry of the order: Provided, however, That application
for an appeal hereunder shall not stay proceedings in the district court unless the
district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C.A. § 1292(b).
Section 1292(b) gives district courts “first line discretion” to allow interlocutory appeals.
Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 47 (1995). It allows certification of an order if
three elements are met: 1) the order involves a controlling question of law; (2) a substantial ground
for difference of opinion exists with respect to the question of law; and (3) an immediate appeal
from the order may advance the ultimate termination of the litigation materially. Little v. Budd
Co., No. 16-4170-DDC-KGG, 2018 WL 5084315, at *1 (D. Kan. Oct. 18, 2018) (citing 28 U.S.C.
§ 1292(b)).
A “question of law” involves the meaning of a statute, constitution, regulation, or commonlaw doctrine, as opposed to a question of fact. XTO Energy, Inc. v. ATD, LLC, 189 F.Supp.3d
1174, 1193 (D. N.M. 2016) (citation omitted). A “controlling” question is one that could
materially affect the outcome of the litigation in the district court. City of Neodesha v. BP Corp.
of N. Am. Inc., No. 15-4025-KHV, 2016 WL 3522092, *3 (D. Kan. June 28, 2016) (citation
omitted). An issue need not be dispositive of the entire action to be controlling. “A controlling
question of law would generally constitute reversible error on final appeal if the district court

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arrived at the wrong legal conclusion.” XTO Energy, 189 F. Supp.3d at 1194. As for “substantial
ground for difference of opinion,” that exists if the ruling
appears contrary to the rulings of all courts of appeals which have reached the issue,
if the circuits are in dispute on the question and the court of appeals of the circuit
has not spoken on the point, if complicated questions arise under foreign law, or if
novel and difficult questions of first impression are presented.
Id. (citing 2 Fed. Proc., L. Ed. § 3:218). Finally, an immediate appeal may “advance the ultimate
termination of the litigation” if it would eliminate the need for a trial, eliminate complex issues so
as to simplify the trial, or make discovery easier and less costly. Id. (citations omitted). If the
litigation will be conducted in substantially the same manner regardless of the decision, an
immediate appeal will not advance the termination of the litigation. Id. This element turns on
pragmatic considerations, assessed by reviewing the procedural and substantive status of the case,
the extent of the parties’ preparation for trial, and the nature and scope of the requested relief. Id.
(citing 2 Fed. Proc., L. Ed. § 3:219).
III. Discussion
Plaintiff seeks certification based on two issues: the meaning of “eligibility factors” and
whether the “decisional unit” includes groups of individuals that were categorically excluded from
the RIF. As to the latter issue, the court finds the dispute does not qualify as a “question of law”
within the meaning of § 1292(b). Rather, it is fact-dependent. Clearly, if a group was never
considered for inclusion in a termination program, it would not be part of the decisional unit. That
legal point was and is undisputed. Here the issue turns on the fact Spirit cited evidence that “it
considered whether employees hired after May 20, 2013, would be subject to the layoffs before
ultimately concluding that they should be exempt from being selected.” (Doc. 385 at 28.) Because
Spirit cited evidence that these employees had been actively considered before being eliminated,
and Plaintiffs failed to controvert that evidence, the court concluded these employees were part of
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the decisional group. (Id.) This is not the sort of pure legal question contemplated by § 1292(b).
See McFarlin v. Conseco Svcs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004) (“The term ‘question
of law’ does not mean the application of settled law to fact.”); Certain Underwriters at Lloyd’s,
London v. Nance, No. 04-937-JB/WDS, 2006 WL 4109675, *3 (D. N.M. Aug. 24, 2006) (“district
courts should certify questions when they are unsure what the law is, not when there is merely a
dispute as to how the law applies to the facts of a particular situation.”) It accordingly provides
no basis for § 1292(b) certification.
The other question identified by Plaintiffs – i.e., whether “eligibility factors” refers to the
factors that make the employee eligible for a severance program or to the reasons the employee
was selected for termination - is a pure question of law. But the court finds there is not a
“substantial ground for difference of opinion” on this question that would justify an immediate
appeal. As the court noted in its prior order, there is no Tenth Circuit authority supporting
Plaintiffs’ construction of this term. (Doc. 385 at 32.) Nor is there authority from any other circuit
court supporting that construction. The OWBPA regulations, meanwhile, provide an illustration
of the term that, as this court previously noted, “clearly refutes” Plaintiffs’ construction. Id. at 31
(citing 29 C.F.R. § 1625.22(f)(4)(vii)(B)). Plaintiffs have cited a few district court opinions from
other circuits that reached a contrary conclusion, but as Spirit points out, those decisions are more
than ten years old, and more recent decisions have coalesced around a conclusion that “eligibility
factors” refers to eligibility for severance or other benefits, not to the reasons the person was
chosen for termination. Id. See Behr v. AADG, Inc., No. 14-3075-CJW, 2016 WL 4119692, *14
(N.D. Iowa July 29, 2016) (both the statutory language and the regulations suggest defendant was
not required to identify the factors it considered in determining which employees to terminate);
Recchia v. Kellogg Co., 951 F.Supp.2d 676, 693 (D. N.J. 2013) (same). The more recent decisions

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specifically considered the regulatory example that refutes Plaintiff’s alternative construction. By
contrast, the cases relied on by Plaintiffs, such as Commonwealth of Mass. v. Bull HN Info. Sys.,
Inc., 143 F.Supp.2d 134 (D. Mass. 2001), did not consider that example and instead summarily
adopted a contrary construction. See id. at 147, n. 29 (because the purpose of disclosure is to alert
employees to potential age discrimination claims, “[c]learly, therefore, the term ‘eligibility factors’
must refer to the factors used to determine who is subject to a termination program, not the factors
used to determine who is eligible for severance pay after termination.”) See also Pagliolo v.
Guidant Corp., 483 F.Supp.2d 847, 861 (D. Minn. 2007) (“The Court agrees with the Bull
court….”)
In sum, the governing regulation and the more recent and better-reasoned cases both
support the construction of “eligibility factors” applied in this case. The court’s ruling does not
contradict the ruling of any circuit court of appeals. The legal issue itself is novel, in the sense
that there is no Tenth Circuit authority on the question, but it is not a difficult or complex issue,
and there are persuasive cases that have guided the court’s decision. The court sees no substantial
basis for doubting the correct legal standard. See Little, 2018 WL 5084315, at *2 (“For the court
to find a substantial ground for difference of opinion, the court must conclude that the question of
law ‘is difficult, novel, and either a question on which there is little precedent or one whose correct
resolution is not substantially guided by previous decisions.’”).
IT IS THEREFORE ORDERED this 30th day of April, 2019, that Plaintiffs’ motion for
leave to file a reply (Doc. 394) is GRANTED; Plaintiffs’ motion to certify order for interlocutory
appeal (Doc. 387) is DENIED.
___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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