KARLO et al v. PITTSBURGH GLASS WORKS, LLC
Filing
179
MEMORANDUM OPINION indicating that,, for reasons more fully stated within, Plaintiffs' Motion for Conditional Certification 88 is granted, in part. The Court will convene a status conference to address any remaining notice issues once the Court receives the parties status reports and proposed notice and consent forms, as directed in the forthcoming Order. Said appropriate Order follows. Signed by Judge Nora Barry Fischer on 5/9/12. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RUDOLPH A. KARLO, MARK K.
MCLURE, WILLIAM S. CUNNINGHAM,
JEFFREY MARIETTI, DAVID
MEIXELSBERGER, BENJAMIN D.
THOMPSON, and RICHARD CSUKAS, on
behalf of themselves and all others similarly
situated,
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Plaintiffs,
vs.
PITTSBURGH GLASS WORKS, LLC,
Defendant.
Civil Action No. 10-1283
Judge Nora Barry Fischer
MEMORANDUM OPINION
Pending before the Court is the “Plaintiffs’ Motion for Conditional Class Certification
and Court Facilitated Notice” (“the motion”).
(Docket No. 88).
The motion is ripe for
adjudication. For the following reasons, Plaintiffs’ motion for conditional certification (Docket
No. 88) is GRANTED, in part, in accord with the following.
I.
Introduction
This action is brought by named Plaintiffs Richard Csukas, Jeffrey Marietti, Mark K.
McLure, Benjamin D. Thompson, Rudolph A. Karlo, David Meixelsberger and William S.
Cunningham (“Plaintiffs”) and against Pittsburgh Glass Works, LLC (“PGW” or “Defendant”).
The Plaintiffs’ claims arise from a March 2009 reduction in force (“RIF”). (Docket No. 54 at ¶
103). This RIF resulted in the termination of each of the named Plaintiffs. Plaintiffs claim that
the RIF was conducted in a manner giving rise to an inference of age discrimination.
Their Amended Complaint (Docket No. 54) raises three counts. Count I claims disparate
treatment under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.
1
(Id. at 36-37). Count II alleges disparate impact. (Id. at 38-39). Finally, Count III claims
retaliation under the ADEA. (Id. at 39-41).
a. The Parties
PGW is a limited liability corporation whose business was owned by PPG Industries, Inc.
(“PPG”) until late 2008. (Docket No. 54 at ¶ 8; Docket No. 73 at ¶ 8). PGW admits that, since
its formation, it has been an “employer” within the meaning of 29 U.S.C. § 623. (Docket No. 73
at ¶ 9). Each of the plaintiffs is over fifty years old. (Docket No. 54 at ¶¶ 1-7; Docket No. 73 at
¶¶ 1-7). They claim that they are all former employees of PGW and that they were previously
long-time PPG employees. (Id. at ¶ 10). PGW responds that all of the plaintiffs were employees
at certain times, but at other times, several of the plaintiffs were employed by another company
and worked with PGW through a contract with that company. (Docket No. 73 at ¶ 10). The
Plaintiffs have all filed charges of employment discrimination based on age against PGW with
the Equal Employment Opportunity Commission, and alleged more than 60 days have elapsed
without the Plaintiffs receiving a Dismissal or Notice of Rights. (Docket No. 54 at ¶¶ 17-18)
Karlo began working for PPG on October 9, 1978. (Id. at ¶ 24). McLure began working
at PPG in 1974. (Id. at ¶32). Cunningham began his career with PPG in April 1996. (Id. at ¶
41). Marietti was hired in 1984. (Id. at ¶ 47). Meixelsberger was hired in 1987. (Id. at ¶ 54).
Thompson was brought in as a part-time employee in 1971, his position was terminated in 1972,
and he was rehired on a permanent basis in 1972. (Id. at ¶¶ 60-61). Csukas started with PPG in
1973. (Id. at ¶ 76).
b. The Formation of PGW
PGW was formed on October 1, 2008, when the auto glass businesses of PPG Industries,
Inc. were spun off to create a new company. (Docket No. 104-1 at ¶ 3). One of PGW’s core
2
businesses is the production of automotive glass, such as windshields, rear windows and side
windows to car manufacturers as an original equipment manufacturer (“OEM”). (Id. at ¶ 5).
Around the time PGW was formed, General Motors, Ford and Chrysler appeared before
Congress to request bailout funds. (Docket No. 104-2). Due to the downturn in the economy,
PGW took drastic steps to “combat rapidly deteriorating sales”, including the closure of two
Canadian facilities and one Michigan facility. (Docket No. 106 at 4; see generally Docket No.
104-3). Between 2008 and 2009, North American vehicle production took a precipitous dive.
(Docket No. 104-4 at 1 (stating that car sales in 2009 would be “an eighteen (18) year low”)).
Several of the named plaintiffs acknowledge the downturn in the economy. (See Docket No. 106
at 6 (citing depositions of Plaintiffs Csukas, Cunningham, McLure and Meixelsberger)). PGW
maintains that the economic downturn led to an initial RIF in late 2008. (Docket No. 104-3 at 2).
c. The March 2009 RIF
Tony Hartmann, PGW’s Vice President of Human Resources, departed from the
company in late 2008. (Docket No. 106 at 7). Kevin Cooney was brought in to replace him on
an interim basis. (Id.). Cooney worked on a reorganization plan in which each business unit
director in the company identified the work that needed to be done and the personnel that were
necessary to perform that work. (Id. (citing Docket No. 104-12 at 47)).
The First Amended Complaint alleges that all of the Representative Plaintiffs were
terminated over a two-day period in March 2009. (Docket No. 54 at ¶ 103). Mr. Csukas was
terminated by Dave King, a PGW supervisor at the Evansville, Indiana facility. (Id. at ¶¶ 104107; Docket No. 73 at ¶¶ 104-107 (admitting that Mr. Csukas was terminated)). On March 31,
2009, Mr. Thompson was informed of his termination by the Creighton Plant Manager, Craig
Barnett, and Human Resources Manager, Myrtle Smith. (Docket No. 54 at ¶ 111; 73 at ¶ 111
3
(admitting termination and presence of Mr. Barnett and Ms. Smith)). Also on that date, the
remainder of the named Plaintiffs – Messrs. Karlo, McLure, Cunningham, Marietti and
Meixelsberger – were terminated by Gary Cannon, Director of Manufacturing at the Harmarville,
Pennsylvania facility. (Docket No. 54 at ¶¶ 120-121; 73 at ¶¶ 120-121).
A total of 105 salaried employees were terminated in the 2009 RIF. (Docket No. 106 at
6). In performing the RIF, upper management relied upon the individual directors of each unit to
determine which employees must be retained and which might be terminated. (Id. at 7; Docket
No. 104-12 at 47, 71-72). The criteria used in the RIF revolved around the work that was done
in each unit, and the “[e]ducation, background, breadth of experience, and so forth.” (Docket
No. 104-12 at 72).
d. Procedural History
Plaintiffs’ motion was filed on October 3, 2011. (Docket No. 88). The parties’ initial
briefs on the motion are filed at Docket Numbers 91, 106, 113 and 126. On November 10, 2011,
Defendant filed a motion for summary judgment concurrently with its response to the present
motion. (See Docket No. 101). Defendant’s Appendix (Docket No. 104) is referenced both in
the motion for summary judgment and in its filings pertaining to the currently-pending motion.
On December 19, 2011, the Court convened a motion hearing on Plaintiffs’ motion for
conditional certification, at which time the Court heard argument and then ordered the parties to
file additional briefing on the issue of the Court’s consideration of expert testimony at the
conditional certification stage. (Docket Nos. 131-132). The parties then filed their supplemental
briefs on January 4, 2012. (Docket Nos. 135, 136).
Shortly thereafter, on January 13, 2012, the parties filed a joint motion to stay the Court’s
consideration of the pending motion while the parties participated in mediation. (Docket No.
4
141). This motion was granted on January 17, 2012. (Docket No. 145). On February 3, 2012,
the Court received a report from the mediator indicating that the case had not settled. (Docket
No. 149). The parties then filed additional supplemental citations to authority. (Docket Nos.
154, 158). The Court held a second motion hearing on March 9, 2012 (Docket No. 161) and
received the transcript of that hearing on April 23, 2012. (Docket No. 176).1
II.
Legal Standard
Through the pending motion, Plaintiffs seek conditional certification of their collective
ADEA claim and court-facilitated notice of same. Pursuant to 29 U.S.C. § 216(b) of the Fair
Labor Standards Act (“FLSA”), which is incorporated into the ADEA via Section 7(b) of that
Act, potential plaintiffs must opt in to a collective action suit and affirmatively notify the court of
their intentions to join the suit. Sperling v. Hoffman-La Roche Inc., 862 F.2d 439, 444 (3d Cir.
1988) (“Sperling II”), aff’d Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)
(“Sperling”). It is not sufficient simply to “opt-in” to a collective action under § 216(b). The
representative plaintiffs must also show that the potential plaintiffs are “similarly situated” to the
representative plaintiffs. See 29 U.S.C. § 216(b); Sperling II, 862 F.2d at 444.
Courts typically follow a two-tiered analysis in determining whether a case may move
forward as a collective action. The first phase, or “notice” phase, requires that a court “make[] a
preliminary determination whether the employees enumerated in the complaint can be
provisionally categorized as similarly situated to the named plaintiff.” Symczyk v. Genesis
HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011). If the plaintiff carries this burden, the
1
Between the March 9, 2012 hearing and the issuance of the transcript, the Court received
Defendant’s Motion for Leave to File Supplement (Docket No. 164) and Motion to Withdraw
(Docket No. 169). The Motion for Leave to File Supplemental Authority was renewed (Docket
No. 172) and subsequently denied. (Docket No. 178). The Court has not considered the
supplemental authority – an Arbitrator’s Order and Opinion from another case involving
Defendant – in deciding the present motion.
5
collective action is “conditionally certified” for purposes of notice and discovery. Id. The
second phase is addressed after all putative class members have had an opportunity to opt in and
further discovery has taken place. Mueller v. CBS, Inc., 201 F.R.D. 425, 428 (W.D.Pa. 2001)
(Ambrose, J.). At this stage, the court “reconsiders the class certification question using a
‘similarly situated’ standard, that is, by conducting a fact-specific review of each class member
who has opted-in, taking into account factors such as employment setting, termination
procedures, defenses asserted against various plaintiffs, and other procedural issues.” Id.
Until recently, there was a split amongst the district courts within the Third Circuit as to
the necessary showing at the notice stage. See Symczyk, 656 F.3d at 192. Some required nothing
more than a “substantial allegation,” while others required the plaintiff to make a “modest factual
showing” to support his claim that the proposed plaintiffs are similarly situated. Id. The Court
of Appeals has spoken on this issue in an FLSA case, rejecting the “substantial allegation”
standard and adopting the “modest factual showing” standard. Id. at 192-93. Even so, the
standard is not particularly high: “a plaintiff must produce some evidence, ‘beyond mere
speculation,’ of a factual nexus between the manner in which the employer’s alleged policy
affected her and the manner in which it affected the other employees.” Id. at 193 (citing Smith v.
Sovereign Bancorp., Inc., No. 03-2420, 2003 WL 22701017, at *3 (E.D.Pa. Nov. 13, 2003)).
Applying the “modest factual showing” standard, a moving plaintiff must demonstrate “a
sufficient factual basis on which a reasonable inference could be made that defendant[]
orchestrated or implemented a single decision, policy or plan to discriminate against their …
employees on the basis of age.” Mueller, 201 F.R.D. at 429 (quoting Brooks v. BellSouth
Telecommunications, Inc., 164 F.R.D. 561, 567 (N.D.Ala. 1995)). The Court need not make a
conclusive finding of “similar situations” at the notice stage. Id.
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III.
Discussion
Plaintiffs define their proposed collective class as all “employees who were, at any time
from on or about March 31, 2009: a) 50 years of age or older; b) Who was employed by PGW; c)
A member of the salaried workforce; and d) Terminated from employment with PGW by the RIF
implemented on March 31, 2009.”2 (Docket No. 88 at 1; see also Docket No. 54 at ¶ 181). The
Court is called upon to determine whether Plaintiffs have made a sufficient showing to
conditionally certify this collective class. In making this determination, the Court will address
several threshold issues before turning to the ultimate question of conditional certification.
a. The ADEA Protects Individuals Who Are Forty Years Old and Older
The ADEA protects against discrimination those who are forty years old and older. See
29 U.S.C. § 631 (defining the protected class as “limited to individuals who are at least 40 years
of age.”). Plaintiffs have attempted to define their class as a subgroup of this class: they seek to
certify a collective action on behalf of those who are fifty years of age or older. (See Docket No.
88 at 1). Defendant challenges this effort to “slice and dice” the class. (Docket No. 135 at 1).
Throughout its briefing, Defendant refers this Court to a series of cases in contending that
courts have consistently rejected efforts akin to Plaintiffs’ request to certify a subgroup under the
ADEA. See EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 950-51 (8th Cir. 1999); Lowe v.
Commack Union Free School Dist., 886 F.2d 1364, 1373 (2d Cir. 1989); Smith v. Tenn. Valley
Auth., 924 F.2d 1059, *4 (6th Cir. 1991); Myers v. Del. County Comm. College, 2007 WL
1322239, at *10, n.1 (E.D.Pa. Mar. 9, 2007); Schechner v. KPIX-TV, 2011 WL 109144, at *4
2
Although Plaintiff Csukas was terminated the day before, it appears that those employees
terminated on March 30, 2009 were terminated as part of the same RIF, with the implication
being that they, too, were subject to the same policy.
7
(N.D. Cal. Jan. 31, 2011); Kinnally v. Rogers Corp., 2009 WL 597211, at *10 (D. Ariz. Mar. 9,
2009). As the Eighth Circuit recognized:
We believe that there are stronger reasons for refusing to recognize such
claims. For one thing, if such claims [for discrimination against subgroups] were
cognizable under the statute, a plaintiff could bring a disparate-impact claim
despite the fact that the statistical evidence indicated that an employer's RIF
criteria had a very favorable impact upon the entire protected group of employees
aged 40 and older, compared to those employees outside the protected group. We
do not believe that Congress could have intended such a result.
We agree, moreover, with the district court that if disparate-impact claims
on behalf of subgroups were cognizable under the ADEA, the consequence would
be to require an employer engaging in a RIF to attempt what might well be
impossible: to achieve statistical parity among the virtually infinite number of age
subgroups in its work force. Adoption of such a theory, moreover, might well
have the anomalous result of forcing employers to take age into account in
making layoff decisions, which is the very sort of age-based decision-making that
the statute proscribes.
McDonnell Douglas Corp., 191 F.3d at 951.
Plaintiffs, for their part, urge this Court to find that subgroup discrimination claims may
be maintained. Albeit filed in their response to the Defendant’s Motion for Summary Judgment,3
Plaintiffs refer this court to a number of cases which, Plaintiffs argue, supports their position.
(See Docket No. 123 at 15). Two of those cases are of particular interest. In Graffam v. Scott
Paper Co., 848 F.Supp. 1 (D. Me. 1994), the District Court for the District of Maine expressly
rejected the reasoning of Lowe, supra, finding that the Lowe rule “deprives older individuals of
the protection from discrimination that the Act is meant to provide.” Graffam, 848 F.Supp. at 4.
Likewise, the District of Delaware rejected the Lowe analysis, finding a subgroup of those of
3
The parties acknowledge that their arguments overlap as to Plaintiffs’ Motion for Conditional
Certification (Docket No. 88) and Defendant’s Motion for Summary Judgment (Docket No.
101). (See Docket No. 176 at 3-4). Because the arguments are related, the Court reads each
motion and its related filings as informing the Court’s analysis of the other motion.
8
fifty years of age and older to be appropriate under the statute. See Finch v. Hercules Inc., 865
F.Supp. 1104, 1129 (D. Del. 1994).
Based upon the representations of the parties and this Court’s own research, it appears
that the issue of subgroup claims under the ADEA has not been addressed by a controlling
authority, whether the Third Circuit or Supreme Court.4 This Court will, therefore, address the
matter as one of first impression.
Although this Court acknowledges that the trend has been away from Graffam and Finch,
and towards McDonnell Douglas, this Court respectfully disagrees with the conclusions reached
in Lowe and McDonnell Douglas.
Lowe was concerned with the ability of a plaintiff to
subdivide the protected class into infinite subgroups, at least one of which would presumably
enable a statistical showing of disparate impact. See id. (noting that “an 85 year old plaintiff
could seek to prove a discrimination claim by showing that a hiring practice caused a disparate
impact on the ‘subgroup’ of those age 85 and above, even though all those hired were in their
late seventies.”).
McDonnell Douglas arrived at the same conclusion, for slightly different reasons. In that
case, the Eighth Circuit observed that, if subgroup claims were allowed, a plaintiff could bring a
disparate impact claim despite the fact that statistical evidence might show that an RIF had
actually had a favorable impact upon the entire protected group of employees over forty when
compared to those employees outside of the protected group. McDonnell Douglas, 191 F.3d at
4
The closest either party gets to a “controlling” authority on this question is Defendant’s citation
to Myers v. Delaware County Community College, Civ. No. 05-5855, 2007 WL 1322239 (E.D.
Pa. March 9, 2007), at page 6 of their supplemental brief. (Docket No. 135 at 6). Myers simply
found the Lowe decision “persuasive.” See Myers, 2007 WL 1322239 at *10 n. 1. However,
because the Court granted summary judgment in favor of the defendant in that case, it did not
thoroughly analyze the question of whether subgroup protection was available under the ADEA.
Id. Thus, the Court will not rely on Myers in its own analysis of the ADEA.
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951. Further, the Court noted that an employer might be required to “attempt what might well be
impossible: to achieve statistical parity among the virtually infinite number of age subgroups in
its work force.” Id.
As stated, this Court does not agree with the conclusions reached in Lowe, McDonnell
Douglas, or the cases that follow them. The Court will examine the broader context of the
ADEA, explaining why it reads the ADEA to allow subgroup classification in disparate impact
cases. With this background in mind, the Court will then address the specific concerns raised by
Lowe and McDonnell Douglas.
i. The ADEA Background and Framework
The ADEA’s prohibition covers “discriminat[ion] … because of age.” 29 U.S.C. §
623(a)(1). The “prohibitions in [the ADEA] shall be limited to individuals who are at least 40
years of age.” 29 U.S.C. § 631(a). Congress, in its findings, makes clear that the ADEA was
passed based on the concern that older workers are disadvantaged in the work place. See 29
U.S.C. § 621(a)(1)-(4).
In 2004, the Supreme Court examined the history of the ADEA in great detail in General
Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004). This Court briefly summarizes
some of the most pertinent points. At the outset, age was not included in the discrimination
forbidden by Title VII of the Civil Rights Act of 1964, § 715, 78 Stat. 265, as Congress was
aware that there were some legitimate reasons, as well as invidious ones, for making
employment decisions based on age. Cline, 540 U.S. at 586-87. Instead, the Secretary of Labor
was called upon to examine the issue. The Secretary determined that older individuals were
disadvantaged when compared to younger.
Report of the Secretary of Labor, The Older
American Worker: Age Discrimination in Employment 2 (June 1965) (hereinafter, Wirtz
10
Report). Although the Secretary observed disadvantage for older workers, the Wirtz Report
“contains no suggestion that reactions to age level off at some point, and it was devoid of any
indication that the Secretary had noticed unfair advantages accruing to older employees at the
expense of their juniors.” Cline, 540 U.S. at 587 (emphasis added).
During congressional hearings on what would become the ADEA, much was said on the
impact of increasing age. See, e.g., Age Discrimination in Employment: Hearings on H.R. 3651
et al. before the General Subcommittee on Labor of the House Committee on Education and
Labor, 90th Congress, 1st Sess. at 151 (1967) (hereinafter House Hearings) (statement of Rep.
Joshua Eilberg) (“At age 40, a worker may find that age restrictions become common … By age
45, his employment opportunities are likely to contract sharply; they shrink more severely at age
55 and virtually vanish by age 65”). “The record thus reflects the common facts that an
individual’s chances to find and keep a job get worse over time; as between any two people, the
younger is in the stronger position, the older more apt to be tagged with demeaning stereotype.”
Cline, 540 U.S. at 589 (emphasis added). Thus, it “is beyond reasonable doubt, that the ADEA
was concerned to protect a relatively old worker from discrimination that works to the advantage
of the relatively young.” Id. at 590-91 (emphasis added).
The legislative history and the holding in Cline make one thing clear: age discrimination
does not stop at forty. The older an employee (or potential employee) is, the more likely it is that
that person will suffer from age discrimination. See House Hearings at 151. This Court sees
nothing in the statute that contradicts this conclusion, or that would limit a court’s ability to
examine in detail any possible disparate impact that may only impact those of more advanced
age than 40-year-olds.
11
Indeed, the Court finds support for the opposite: the statute protects “individuals who are
at least 40 years of age.” 29 U.S.C. § 631(a) (emphasis added). The statute, by its plain
language, protects anyone who is forty or older. The statute likewise clearly protects against
employment decisions made “because of [an] individual’s age.” 29 U.S.C. § 623(a)(1)-(2).
Clearly, a fifty year old is older than forty, and there can be no serious dispute that fifty year olds
can be discriminated against on the basis of their age, even when compared to other, younger
members of the protected group.
The Court also finds support for the viability of subgroup claims in the Supreme Court’s
recognition that the “ultimate legal issue” is the same in disparate impact and disparate treatment
cases. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988). The Supreme Court
has also held that a claim may lie even where a plaintiff fails to establish that he was replaced by
someone outside of the protected class. See O’Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308, 313 (1996). Although that case was, admittedly, decided in the context of a disparate
treatment claim, the “ultimate legal issue” in that case is the same as in a disparate impact case:
that is, whether a relatively younger individual – within or outside of the class – was preferred to
the plaintiff for no reason other than age. Thus, the distinction between treatment and impact is
not persuasive here. See Sandra F. Sperino, The Sky Remains Intact: Why Allowing Subgroup
Evidence is Consistent With the Age Discrimination in Employment Act, 90 MARQ. L. REV. 227,
252-53 (2006) (hereinafter, Sperino) (arguing that the O’Connor decision should not be limited
to disparate treatment claims).
If a lone fifty-five year old can establish a claim for age
discrimination, even if he was replaced by a forty-two year old, the Court sees no reason why a
group of fifty-five year olds cannot do the same.
12
This Court finds further support for allowing subgroup claims by looking beyond the
confines of the ADEA. Given the similarity of the statutory language, the Supreme Court has
looked to, and followed, its reasoning in Title VII cases when analyzing the ADEA.
Specifically, the Court followed its Title VII precedent in concluding that the ADEA allowed
disparate impact claims.. See Smith v. City of Jackson, Miss., 544 U.S. 228, 233-35 (2005)
(finding that the ADEA provides for disparate impact claims).5 Taking this reasoning a step
further, “[i]t is clear that Congress never intended to give an employer license to discriminate
against some employees on the basis of [age] merely because he favorably treats other members
of the employees’ group.” Connecticut v. Teal, 457 U.S. 440, 445 (1982). If subgroup claims
are cognizable in disparate impact cases under Title VII, in the absence of statutory language that
indicates otherwise, they should likewise be cognizable under the ADEA
Of course, just because a subgroup may be defined under the ADEA does not mean that
there are no limits upon that definition: the Cline decision makes clear that discrimination cannot
occur with respect to those that are part of the protected class, but are relatively younger. The
focus of Cline was a policy which arguably discriminated against those over forty and under
fifty. See Cline, 540 U.S. at 584. Based on the House Hearings and Wirtz Report, supra, among
other sources, the Supreme Court determined that such a group was not colorable, as the ADEA
does not prohibit favoring the older over the younger. Id.
The logical conclusion to be drawn from the Cline holding is that no subgroup may be
defined with an upper boundary – only a lower one. If, for example, a plaintiff were to attempt
5
The Court recognizes that the Smith decision did observe that “the scope of disparate-impact
liability under ADEA is narrower than under Title VII.” Smith, 544 U.S. at 240. The two
reasons for this narrower scope are the ADEA’s “reasonable factor other than age” provision and
the amendments to Title VII contained in the Civil Rights Act of 1991. The Court does not read
either of these limitations as affecting the analysis of whether a subgroup claim may be brought.
13
to define a subgroup of 55-58 year olds, and there were employees over 58 years of age, the
underlying argument that must necessarily be assumed is that those employees 59 and over have
been treated better than those in the subgroup.6 This does not accord with Cline, and would
necessarily fail under the reasoning of that case.
Further, because statistics are valuable in showing disparate impact, the Court notes that
the size of a subgroup is practically limited by the boundaries of statistical analysis. The more
narrowly a subgroup is defined, the easier it may be to show a disparate impact. Indeed, with a
sufficiently narrow and defined subgroup, a case could potentially describe a hypothetical class
of one. However, the more narrowly a subgroup is defined, the less likely the statistics derived
from that subgroup are to be statistically significant. See Sperino, 90 MARQ. L. REV. at 229
(“For many employees, especially those in their sixties or older, it will be impossible to produce
subgroup evidence in support of a disparate impact claim because there will simply be too few
employees within the protected class to create a statistically significant sample.”).7
ii. Lowe and McDonnell Douglas
With this background in mind, this Court does not find the reasoning applied in Lowe or
McDonnell Douglas to be sufficient to deny plaintiffs the ability to bring subgroup claims under
the ADEA, at this stage.
6
If there are no employees older than 58 in this hypothetical, than the subgroup is, for all
purposes, a group defined with only a lower limit of 55 years of age. This group would be in
accord with Cline, as it would compare older to younger, only.
7
The Court observes that it appears that the average employee age is increasing. By 2016,
workers age 65 and over are expected to account for 6.1 percent of the total workforce, which is
a sharp increase from the 2006 share of 3.6 percent. See Projected growth in labor force
participation
of
seniors,
2006-2016,
available
at
http://www.bls.gov/opub/ted/2008/jul/wk4/art04.htm (last visited May 2, 2012). Thus, Professor
Sperino’s point may not hold true for employees age 65 and older, but it surely holds true at
some point in the age spectrum.
14
The concern in Lowe was that a complaining party may be able to pick and choose how
to define his subgroup in order to produce statistical evidence that might demonstrate
discriminatory impact. Lowe, 886 F.2d at 1373. As this Court has described above, there are
two factors that mitigate this concern. First, this Court reads the Cline decision to prohibit
defining an upper cap on a subgroup. Thus, a plaintiff will not be able to whittle down a
subgroup from top to bottom and bottom to top in order to achieve the statistical disparity he
seeks. Second, even if a plaintiff were to attempt to create a narrowly-restricted subgroup, the
limitations of statistical analysis restrict the degree to which a plaintiff might construct his
proposed subgroup.
One of the concerns raised in McDonnell Douglas is similar, but distinct. The Eighth
Circuit’s fear was that, if plaintiffs were able to selectively define subgroups, employers would
be forced to attempt the “impossible: to achieve statistical parity among the virtually infinite
number of age subgroups in its work force.” McDonnell Douglas, 191 F.3d at 951. This Court
believes the same two factors discussed relative to Lowe are likewise fatal to McDonnell
Douglas’s concern over impossibility, and the Court will not repeat itself. Additionally, while an
“infinite” number of subgroups is technically feasible, as time can be divided into an infinite
number of increments, as a practical matter courts will only have to deal with discrete, and rather
limited, proposed subgroups. Full years, i.e. 52, 56, or 70, are the only likely discrete values that
might be used to construct subgroups. Practically speaking, there are only about 30 discrete
values – from 40 years old to approximately 70 years – over which courts might see proposed
subgroups, as typically, people are approaching retirement by that age, if not sooner.8
8
While technically possible, this Court perceives that it is highly unlikely that litigants may
engage in the child-like practice of subdividing years. For example, PGW points to the
possibility of a “creative ‘subset,’ even one as absurd as ages 45 ½ to 49 ¾.” (Docket No. 135 at
15
Perhaps the most troubling justification for denying subgroup claims is the other problem
raised in McDonnell Douglas. The Eighth Circuit observed that, in certain circumstances, a
subgroup disparate impact claim might stand, even though the entire protected class of
employees over forty might have been treated very favorably when compared to those employees
outside of the protected group. Id. However, as Cline makes clear, the ADEA is not concerned
with reverse age discrimination. See Cline, 540 U.S. at 590-91. Rather, this Court reads Cline to
yield the proposition that, so long as comparatively older workers are treated less favorably than
comparatively younger, but still protected, workers, the impact of a given policy on unprotected
workers is irrelevant.
iii. Plaintiffs May Define a Class as 50 and Over
Given the foregoing discussion, the Court is of the belief that the Plaintiffs may define
their collective class as a subgroup of the statutorily-protected class of employees over 40 years
of age. This Court sees nothing in the statute that prohibits the rights of employees to do so, and
the Court finds no sufficient justification in the non-binding precedent which refutes that
conclusion. Instead, the Court finds highly persuasive the reasoning presented in Professor
Sperino’s article, referenced above. See generally Sperino, 90 MARQ. L. REV. 227. The Court
will, therefore, accept the collective group, as defined by the Plaintiffs, for purposes of the
remaining analysis.
b. Expert Witnesses at the Conditional Certification Stage
The Court next turns to the parties’ dispute over the propriety of this Court’s
consideration of expert evidence. Plaintiffs, for their part, oppose any use of expert evidence at
6). That truly is absurd. One can only imagine a litigant coming to federal court and arguing
“Acme Company discriminated against me because I’m fifty and a half, and my replacement is
only fifty and a quarter!” One can also imagine the haste with which a court would dispose of
such a case.
16
this stage of litigation. (Docket No. 113 at 26-29). The gist of their argument, as the Court
understands it, is the simple proposition that the Plaintiffs are not required to present expert
testimony at the conditional certification stage. They do, however, submit with their reply brief,
an expert report in opposition to PGW’s. (Docket No. 113-2). Plaintiffs ask that the Court
consider this Report “only if the Court chooses to accept the Pifer Report as evidence in
opposition to conditional certification—which it should not do.” (Docket No. 113 at 28).
Defendant responds that consideration of its expert testimony is appropriate precisely for
the reasons Plaintiffs claim it is not: that is, that the authority upon which Plaintiffs rely to
oppose the use of statistics in this discriminatory impact case discusses the use of statistical
evidence in a disparate treatment case. (See Docket No. 126 at 15) (discussing Healy v. New
York Life Ins. Co., 860 F.2d 1209 (3d Cir. 1988)). Defendant also argues that it is inappropriate
for Plaintiffs to introduce new evidence in their reply brief, and as a result, the expert evidence
submitted therein should be barred for purposes of this motion. (Id. at 16).
The Court will first address the propriety of considering the Plaintiffs’ newly-raised
expert report. “It is improper for the moving party to shift gears and introduce new facts or
different legal arguments in the reply brief than [those that were] presented in the moving
papers.” D’Aiuto v. City of Jersey City, Civ. No. 06-6222, 2007 U.S. Dist. LEXIS 57646, at *10,
n. 1 (D.N.J. August 8, 2007) (Greenaway, J.) (internal quotations omitted) (quoting William W.
Schwarzer, A. Wallace Tashima, and James M. Wagstaffe, FEDERAL CIVIL PROCEDURE
BEFORE TRIAL, § 12:107 (The Rutter Group 2005)). “[R]eply briefs are limited in scope to
matters either raised by the opposition or unforeseen at the time of the original motion.”
Burnham v. City of Rohnert Park, No. C 92-1439, 1992 WL 672965, *5 (N.D. Cal. May 18,
1992). Plaintiffs twice alluded to statistical evidence, but failed to produce any expert report or
17
otherwise brief the issue.9 Thus, the Plaintiffs were clearly aware of the potential for statistical
evidence, and as such, it cannot be considered unforeseen. In this regard, it would be improper
for Plaintiffs to introduce expert evidence that could otherwise have been raised in its opening
brief.
That is not to say that Plaintiffs’ report could not be raised as rebuttal evidence.
“Whether to permit or prohibit the introduction of rebuttal evidence is committed to the sound
discretion of the trial court.” Jackson v. City of Pittsburgh, Civ. No. 07-111, 2011 WL 3443951,
*15 (W.D. Pa. Aug. 8, 2011) (citing Fed.R.Evid. 611(a); Bhaya v. Westinghouse Elec. Corp., 922
F.2d 184, 190 (3d Cir. 1990) (“a trial judge’s decision regarding the scope of rebuttal may not be
reversed unless there has been a clear abuse of discretion.”)). “Rebuttal evidence must generally
tend to refute the defendant’s proof,” Bhaya, 922 F.2d at 190, and “is not to be used as a
continuation of the case-in-chief.” Cates v. Sears Roebuck & Co., 928 F.2d 679, 685 (5th Cir.
1991). Moreover, “[o]nce a plaintiff has had a chance to prove a fact, he cannot reopen the
matter simply by stating that he wishes to introduce more or better evidence.” Pignons S.A. de
Mecanique v. Polaroid Corp., 701 F.2d 1, 2 (1st Cir. 1983). Thus, it would be within the Court’s
discretion to consider Plaintiffs’ expert evidence in rebuttal. However, as the Court explains
9
The extent of Plaintiff’s reference to statistical evidence is contained on pages 9 and 13 of their
Brief in Support of their Motion for Conditional Class Certification. (Docket No. 91). Page 9
states only that the “standard-less evaluation practice resulted in the termination of
approximately 105 employees, 54.3 percent of whom were over 50.” (Docket No. 91 at 9). Page
13 contains slightly more detail:
Just considering the 105 or so employees terminated, it is easily
discernible that the impact was largely borne by the older workers, with those
over 50 being especially hard hit. The percentage of employees who were 40 and
older who were terminated was 80 percent, and the percentage of employees who
were 50 and older who were terminated was 54.3 percent. (Id. at 13).
These “passing reference[s]” are insufficient, without more, to preserve the argument for
later. See Laborers’ Intern., 26 F.3d at 398.
18
below, it does not see a compelling reason to give great consideration to expert evidence from
either side of this dispute at this stage in the proceedings.
Defendant avoids the issues just addressed because its expert report was filed
contemporaneously with its responsive brief. This report is directed largely to the merits of the
Plaintiffs’ claims of discrimination. It describes the percentages of those employees retained and
terminated (see, e.g., Docket No. 104-20 at ¶¶ 22-25 (examining Plaintiffs’ brief references to
age statistics and stating that the affidavit “focuses on whether []differences between those PGW
salaried employees terminated and those retained are statistically significant for each alternative
protected class and for alternative categories of PGW salaries employees.”)), with little reference
made to whether the proposed members were similarly situated to the named Plaintiffs.
The Court may consider only admissible evidence in deciding a motion to conditionally
certify a collective action. See, e.g., Wright v. Lehigh Valley Hospital, Civ. No. 10-431, 2010
WL 3363992, *4 (E.D.Pa. Aug. 24, 2010); Kuznyetsov v. West Penn Allegheny Health System,
Inc., Civ. No. 09-379, 2009 WL 1515175, *4 (W.D.Pa. June 1, 2009) (Ambrose, J.); Stanislaw v.
Erie Indem. Co., Civ. No. 07-1078, 2009 WL 426641, *2 (W.D.Pa. Feb. 20, 2009). While these
cases are useful, they are not entirely dispositive, as there is no indication that Defendant’s
expert report would be inadmissible. So, the Court’s analysis must go a step further.
The thrust of the Court’s inquiry at this juncture – i.e., at the conditional certification
stage – “is not on whether there has been an actual violation of law but rather on whether the
proposed plaintiffs are ‘similarly situated’ under 29 U.S.C. § 216(B) with respect to their
allegations that the law has been violated.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54
(S.D.N.Y. 2005) (citing Krueger v. N.Y. Tel. Co., Civ. Nos. 93-178, 93-179, 1993 WL 276058,
*2 (S.D.N.Y. July 21, 1993) (“[T]he Court need not evaluate the merits of plaintiff’s claims in
19
order to determine whether a ‘similarly situated’ group exists.”); see also Owens v. Bethlehem
Mines Corp., 108 F.R.D. 207, 210-211 (S.D.W. Va. 1985) (“[A]t this point the Plaintiff does not
have to prove that there was a class of employees which was subjected to discrimination by [the
defendant]. This … is the ultimate question. The Plaintiff only has to show that a group of
employees similarly situated to one another are claiming discrimination.”). The analysis here is
not directed to whether the plaintiffs will succeed in their claim; rather, the purpose of the
analysis is to “establish[] nothing more than the right of the plaintiffs to ‘maintain’ a collective
action.” Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988) (“Sperling
III”).
Although these cases are not controlling, they are entirely consistent with the Third
Circuit’s admonition that, “[d]uring the initial phase, the court makes a preliminary
determination whether the employees enumerated in the complaint can be provisionally
categorized as similarly situated to the named plaintiff.” Symczyk, 656 F.3d at 192. Under the
“modest factual showing” standard, the movant must produce some evidence “of a factual nexus
between the manner in which the employer’s alleged policy affected her and the manner in
which it affected other employees.” Id. at 193. Nothing in the case law, to this Court’s reading,
requires a trial court to engage in a determination on the legal merits of the underlying
discrimination claim at the conditional certification stage.
Given that the Court is not examining the legal merits of the Plaintiffs’ claims here, the
Court finds that the Defendant’s expert report is not dispositive with respect to the instant
motion. Defendant’s report is directed to statistical evidence of discrimination, not the element
of similar situation. In his own words, Defendant’s expert “ha[s] been instructed … to review,
comment on and analyze the statistical significance, if any, of the alleged age discrimination
20
claim by Plaintiffs within their proposed protected class of PGW salaried employees.” (Docket
No. 104-20 at ¶ 12) (emphasis added). “The fundamental issue discussed herein is whether there
is any statistical evidence of age discrimination during PGW’s reduction in force of its salaried
employees on or about 31 March 2009.” (Id. at ¶ 16). The report speaks to the merits of the
discrimination case, not the motion presently before the Court.
Hence, the report is not
instrumental in the Court’s decision to conditionally certify this case.
c. Conditional Certification
Having decided that the Plaintiffs’ proposed subgroup class claim is cognizable under the
ADEA, and that the proposed expert evidence as to discrimination does not dictate the outcome
of the similar situation analysis, the Court now turns to the merits of the motion for conditional
certification. To qualify for conditional certification, Plaintiffs need only make out a “modest
factual showing”, Symczyk, 656 F.3d at 192-93, that they are similarly situated to other members
of the proposed class. To this end, the Court must determine whether the Plaintiffs have
demonstrated “a sufficient factual basis on which a reasonable inference could be made that
defendant[] orchestrated or implemented a single decision, policy or plan to discriminate against
[its] … employees on the basis of age.” Mueller, 201 F.R.D. at 429 (citing Brooks, 164 F.R.D. at
567).
Defendant argues that, even if the Plaintiffs show that they (and their proposed class
members) were victims of a single decision, policy or plan, they “must further show that the
putative class members: (1) were employed in the same corporate department, division and
location; (2) advance similar claims; and (3) seek substantially the same form of relief.” (Docket
No. 106 at 24 (citing Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51 (3d Cir. 1989),
overruled on other grounds, Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1099 n.10 (3d
21
Cir. 1995))). This Court, however, does not read Lockhart as requiring affirmative showings of
these factors, as the Court of Appeals merely cited with approval a lower court’s analysis of
those factors. See Lockhart, 879 F.2d at 51. Indeed, the paragraph following the one cited by
the Defendants proves the point: the Court of Appeals concluded that the opt-in plaintiffs in that
action were “similarly situated” despite being employed in different branch locations. Id. (“The
opt-in plaintiffs in the present action were all former employees within the Financial Services
Division of WCC, albeit in different branch locations… Balancing the factors as applied in
Plummer and Lusardi, we conclude that all the opt-in plaintiffs in this present action were
‘similarly situated’ to Lockhart.”) (emphasis added).
All said, courts have examined a number of factors in the conditional certification
analysis. These factors are summarized well in Wynn v. National Broadcasting Co., Inc., 234 F.
Supp. 2d 1067, 1082-84 (C.D. Cal. 2002), which cites a number of other cases that have
addressed similarity. The first is Lusardi v. Xerox Corp., which looked to “(1) the disparate
factual and employment settings of the individual plaintiffs; (2) the various defenses available to
Xerox which appear to be individual to each plaintiff; [and] (3) fairness and procedural
considerations.” Lusardi, 118 F.R.D. 351, 359 (D.N.J. 1987). Other factors include: (1) whether
the plaintiffs all held the same job titles; (2) whether the plaintiffs worked in different
geographical locations; (3) the extent to which the claimed discrimination occurs during different
time periods and by different decision-makers; (4) whether plaintiffs have provided “statistically
significant” evidence of age discrimination; (5) whether the plaintiffs all alleged similar, though
not identical, discriminatory treatment; (6) whether the plaintiffs have sufficiently pled and
supported by affidavits, depositions, and the like that defendant's decision-makers have
articulated and manifested a clear intent to purge the defendant of older employees; and (7)
22
whether the defendant took steps to implement its plan, such as by targeting older employees for
criticism and building a “paper trail” that would be grounds for their demotion. Wynn, 234 F.
Supp. 2d at 1083.
A brief review of some of the cases cited by Wynn is informative. The facts in Hyman v.
First Union Corporation, 982 F. Supp. 1 (D.D.C. 1997), demonstrate the type of evidence that
speaks to similarity. That case involved terminations “during two RIFs in a span of six months”
after one entity was acquired by another. Hyman, 982 F. Supp. at 4-5. Although the plaintiffs in
Hyman acknowledged that “individual managers did have discretion when deciding whom to
retain,” they argued that a few central individuals were responsible for the ultimate
discrimination. Id. at 4. “Weighing very strongly in favor of a collective action is the fact that
the challenged employment practice, termination, is the same for each of the members.” Id.
Finally, the Hyman Court weighed heavily in favor of conditional certification the fact that
common evidence would be used to prove the alleged discrimination. Id. at 5.
Lusardi involved “various work force reductions.” 118 F.R.D. at 352. The proposed
class in that case was derived from a wide range of suborganizations and subsidiaries and
involved different jobs. Id. The proposed class members were subject to different job actions,
“including resignations, promotions, terminations for cause, etc.”, and “which occurred at
various times as a result of decisions by different supervisors made on a decentralized employeeby-employee basis.” Id. Indeed, the terminations at issue occurred over twenty-eight voluntary
RIFs or forty-seven involuntary RIFs that occurred over a four year period. Id. at 361. On the
basis of these differences, the motion was denied.
The Wynn case itself presents a different set of facts which resulted in a denial. That case
addressed “an unprecedented move”: “combining the decisions of several loosely-related
23
entities, under an umbrella of a common industry-wide practice.” Wynn, 234 F. Supp. 2d at
1083. The plaintiffs – former or current television writers – were from “various states and
Canada,” and they claimed different backgrounds “in terms of qualifications and experience.”
Id. at 1074. Some plaintiffs had not worked for nearly twenty years, while others had obtained
work in the years leading up to the filing of the lawsuit. Id. Even so, the Court recognized that
“it would appear that Plaintiffs have done all that is required of them up to this point. Were they
to proceed in a class action against any one employer, … the class would most likely be
conditionally certified.” Id. at 1084.
After review of these cases, considering the facts of the pending case, the Court
concludes that Plaintiffs’ request for conditional certification should be granted. Although the
instant facts are not identical to any set of facts in the cases addressed above, or any other that
the Court has found, the Court believes this case has much more in common with Hyman than it
does Lusardi.
First, the Court looks to the activities of the Defendant. Plaintiffs have demonstrated that
they were all terminated in the course of a single, company-wide RIF.
This RIF clearly
constitutes a “single decision, policy or plan,” even if it was implemented by individual
managers. Further, the named Plaintiffs were all over 50 years old when they were terminated
from PGW. Despite what appears to be the common practice of allowing qualified workers to
apply for alternative positions when theirs are at risk,10 Mr. Karlo was expressly denied that
10
PPG’s October 30, 2000 RIF Guidelines make clear that that entity allowed the practice of
“bumping,” where a satisfactory worker whose position was eliminated would “displace” a
worker who received “needs improvement” ratings. (Docket No. 88-4 at 3). Likewise, Mr.
Cooney indicated at his deposition that his former employer, Whirlpool, had a similar policy in
place, where it “made sure that [displaced employees] were made aware of” alternative positions
in the company. (Docket No. 88-5 at 11-13). While this evidence does not appear relevant to
the question of PGW’s alleged discrimination, the Court observes that the evidence does indicate
24
opportunity. (See Docket No. 88-6 at 11-12). The evidence also hints that “adaptability,”
potentially a proxy for age,11 was a factor considered in the RIF. (Id. at 12-13). Combined with
the lack of any documentation about the RIF,12 this Court finds that PGW’s activities weigh in
favor of certification. Importantly, the fact that the decision to implement the RIF was made at a
high level of the organization weighs in favor of a broader class. See Owens, 108 F.R.D. at 212
(“It is the nature of a reduction in force which makes the broader class definition appropriate.”).
As to the actual similarities between members of the proposed class, this Court agrees
with Hyman’s reasoning that termination via the same RIF “weigh[s] very strongly in favor of a
collective action.” Hyman, 982 F. Supp. at 4. Unlike Lusardi, which involved a large number of
localized RIFs that occurred over an extended period, the actions complained of in this case all
arose under a single, company-wide RIF. Although the Hyman plaintiffs “all come from a
discrete geographical area,” id., this Court finds that the high-level decision to implement a
company-wide RIF outweighs the geographic dispersion of the proposed class members. A
that other firms typically look to give qualified displaced employees other opportunities within
the company before termination. The record demonstrates that there were no guidelines in place
at PGW when the 2009 RIF occurred. (See generally Docket No. 88-5).
11
See, e.g., Machinchick v. PB Power, Inc., 398 F.3d 345, 352 (5th Cir. 2005); Bienkowski v.
American Airlines, Inc., 851 F.2d 1503, 1507 (5th Cir. 1988). Cf. Robinson v. Union Carbide
Corp., 538 F.2d 652, 662 (5th Cir. 1976) (observing that subjects like “adaptability” may
“subject[] the ultimate promotion decision to the intolerable occurrence of conscious or
unconscious prejudice.”).
12
The Court recognizes and accepts the Defendant’s argument that a “lack of consideration of
historical performance data and HR oversight, and failure to use a predecessor company’s
(PPG’s) RIF guidelines do not alone establish that any individual or group of individuals was
discriminated against.” (Docket No. 126 at 11 (citing Marione v. Metro Life Ins. Co., 188 Fed.
App’x 141 (3d Cir. 2006)). However, a lack of guidelines, in conjunction with statements like
those of Mr. Cannon, who evidently claimed that his decision was driven by “adaptability” (see
Docket No. 88-6 at 12-13), might give rise to an inference of ageism. The Court does not draw
that conclusion here, but emphasizes that such an inference may be drawn based on the evidence.
25
single decision, made high enough in the company, may have implications that reach far beyond
a narrow geographic location.
Finally, the Court observes that the proposed class members will rely on common
evidence to prove their alleged discrimination.
This, too, weighs in favor of conditional
certification. See id. at 5.
Because this Court is convinced that the Plaintiffs have made an adequate showing of
similarity to surpass the relatively low hurdle of conditional certification, the Court will grant
leave to pursue the collective action. However, the Court notes that this does not mean Plaintiffs
have satisfied the ultimate burden they will face in achieving certification of this representative
action. See Symczyk, 656 F.3d at 194 (“[T]he certification we refer to here is only the district
court’s exercise of [its] discretionary power, upheld in Hoffman-La Roche, to facilitate the
sending of notice to potential class members and is neither necessary nor sufficient for the
existence of a representative action under the [ADEA].”) (internal quotations omitted) (quoting
Myers v. Hertz Corp., 624 F.3d 537, 555 n. 10 (2d Cir. 2010)). At present, the evidence is far
from sufficient to carry the final burden.
d. PGW’s Wal-Mart Argument
Because it raises an important question, the Court also addresses PGW’s argument that
the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), should
lead to a denial of Plaintiffs’ motion for conditional certification. In their opening brief, the
Plaintiffs argue that Wal-Mart is irrelevant to this case, as it was decided under Rule 23, and not
the collective action mechanism. (Docket No. 91 at 29-30). They also note that their proposed
class is dramatically different from the mammoth class in Wal-Mart. (Id. at 30-31). PGW
argues that the Wal-Mart holding is instructive here, and points the Court to several cases that
26
PGW claims support that proposition. (See Docket No. 106 at 22-23 (citing Ruiz v. Serco, Inc.,
Civ. No. 10-394, 2011 WL 7138732, *6 (W.D. Wis. Aug. 5, 2011); MacGregor v. Farmers Ins.
Exch., Civ. No. 10-3088, 2011 WL 2981466, *4 (D.S.C. July 22, 2011)).
To the extent that these cases describe Wal-Mart as “instructive”, Ruiz, 2011 WL
7138732 at *6, or “illuminating,” MacGregor, 2011 WL 2981466 at *4, with respect to
collective actions, this Court agrees. However, the Court does not believe that application of
Wal-Mart would render the class uncertifiable.13 First, Wal-Mart is factually quite different from
the present case. At issue in that case were pay and promotion decisions made with respect to
more than 1.5 million class members. Wal-Mart, 131 S.Ct. at 2547. It appears that each one of
these decisions occurred independently, over the course of several years.
See id. at 2549
(defining the class as all women employed “since December 26, 1998”). The numerosity and
dispersion of the Wal-Mart class makes it look more like Wynn, 234 F. Supp. 2d 1067, supra,
than the instant case.
Second, there is language in the Wal-Mart case itself that indicates that conditional
certification is appropriate in this case. The Court observed that:
What matters to class certification … is not the raising of common
“questions”—even in droves—but, rather the capacity of a classwide proceeding
to generate common answers apt to drive the resolution of the litigation.
Dissimilarities within the proposed class are what have the potential to impede the
generation of common answers.
Wal-Mart, 131 S.Ct. at 2551 (emphasis in original, internal citation omitted). The Court’s
tentative finding that the parties are similarly situated is an indication that it believes that a
13
The Court is not aware of any case within this Circuit on the point, and emphasizes that it does
not decide, at this juncture, whether the reasoning in Wal-Mart is necessarily to be applied to
collective actions in the ADEA. Rather, the Court simply observes that, on the record before it,
even if Wal-Mart was applicable, it would not lead this Court to conclude that conditional
certification should be denied.
27
common answer will be found to the question of whether discrimination lies at the root of the
March 2009 RIF implemented by PGW or not. At the decertification stage, the Court should
have more evidence with which to determine whether the dissimilarities between putative class
members will impede the generation of common answers or not.
Thus, while the Court does believe that the reasoning in Wal-Mart is instructive in
collective action context, the Court is not persuaded that following Wal-Mart would result in the
denial of conditional certification here. Instead, the Court believes that the standard two-tiered
process is actually on all fours with the Wal-Mart decision. This conclusion is bolstered by the
Symczyk decision, which was decided after – and cited, albeit for a different proposition – the
Wal-Mart decision. See Symczyk, 656 F.3d at 198 n. 10.
e. Court-Facilitated Notice
Under Sperling, this Court has the authority to facilitate notice to putative opt-in
plaintiffs. Sperling, 493 U.S. at 169. However, this Court, in its Amended Case Management
Order (Docket No. 83) ordered the parties to meet and confer regarding the opt-in notice and
consent forms, “which shall be made ready for the Court’s review upon the Court’s ruling on
certification, at which time the Court will convene a status conference to review same.” (Id. at ¶
5). As PGW argues, based on the Court’s Order, Plaintiffs’ request for approval of notice was
premature. (See Docket No. 106 at 35). PGW informed the Court in its brief that there is only
“one discrete matter” to address, (id.), so the Court now directs counsel to the parties to finalize
the notice and consent forms and present them to the Court for its review.
Finally, there is some dispute over whether Defendant must provide Plaintiffs with
contact information for the prospective class members. On that question, the Court finds that it
is appropriate for Defendant to produce the same. See Sperling III, 118 F.R.D. at 404 (requiring
28
the defendant to comply with plaintiffs’ request for discovery of names and addresses). Despite
Defendant’s claims that it has “already provide[d] Plaintiffs with much of the requested
information,” (id.), the Court will require that Defendant produce the names and addresses of all
potential class members to ensure that no relevant names are omitted.
IV.
Conclusion
For the foregoing reasons, Plaintiffs’ Motion for Conditional Certification (Docket No.
88) is GRANTED, in part. The Court will convene a status conference to address any remaining
notice issues once the Court receives the parties’ status reports and proposed notice and consent
forms, as directed in the forthcoming Order. Said appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: May 9, 2012
cc/ecf: All counsel of record.
29
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