KARLO et al v. PITTSBURGH GLASS WORKS, LLC

Filing 205

MEMORANDUM ORDER indicating that 186 Defendant's Motion to Certify for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b), is denied without prejudice to the Defendants renewing their arguments after the Court has ruled upon decertification (details more fully stated in said Order). Signed by Judge Nora Barry Fischer on 7/20/12. (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 ORDER
Pending before the Court is the Defendant’s “Motion to Certify for Interlocutory Appeal
Pursuant to 28 U.S.C. § 1292(b).” (Docket No. 186). The motion has been fully briefed by both
parties, (see Docket Nos. 187, 195, 198, 201), and is therefore ripe for disposition. Upon
consideration of the Defendant’s Motion (Docket No. 186), the motion [186] is DENIED,
without prejudice to the Defendants renewing their arguments after the Court has ruled upon
decertification.
I.

Introduction

The pending motion arises in the wake of the Court’s opinion and order granting
conditional certification of the Plaintiffs’ collective action for putative age discrimination class
comprised of members of 50 years of age and older. (Docket Nos. 179, 180). As the parties are
aware of the facts, the Court declines to restate them here. The Court’s opinion raised three
issues for which the Defendant seeks leave to appeal under § 1292(b):

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(1) whether sub-grouping is permitted in disparate impact claims under the Age
Discrimination in Employment Act (“ADEA”);
(2) whether courts should apply Dukes v. Wal-Mart Stores, Inc. to each stage of
the collective action certification process and require at the condition[al]
certification stage a modest factual showing that Plaintiffs and the proposed
class are similarly situated without reliance on the alleged “corporate culture”
at the defendant corporation; and
(3) whether the “modest factual showing” required for conditional certification
includes a modest showing that the proposed class members can present a
claim for disparate impact.
(Docket No. 187 at 1). The Plaintiffs oppose the motion.
II.

Legal Standard

28 U.S.C. § 1292(b) allows for certification of a question for interlocutory appeal if the
order at issue “(1) involve[s] a ‘controlling question of law,’ (2) offer[s] ‘substantial ground for
difference of opinion’ as to its correctness, and (3) if appealed immediately ‘materially
advance[s] the ultimate termination of the litigation.’” Katz v. Carte Blanch Corp., 496 F.2d
747, 754 (3d Cir. 1973) (quoting 28 U.S.C. § 1292(b)). Even if the moving party satisfies the
statutory criteria, the district court “possesses discretion to deny certification of an appeal.” In re
Chocolate Confectionary Antitrust Litig., 607 F. Supp. 2d 701, 708 (M.D. Pa. 2009). However,
such discretion should not be exercised when “certification will materially advance the instant
matter and bring clarity to a still-developing area of law.” Id.
In determining whether an order presents a controlling question of law, the Court must
look to whether (1) an incorrect disposition would constitute reversible error if presented on final
appeal or (2) if the question is “serious to the conduct of the litigation either practically or
legally.” Katz, 496 F.2d at 755. The clearest evidence of “substantial grounds for difference of
opinion” is where “there are conflicting interpretations from numerous courts.” Beazer E., Inc.
v. The Mead Corp., No. 91-408, 2006 WL 2927627, at *2 (W.D. Pa. Oct. 12, 2006) (Diamond,
J.).

And, in terms of determining whether appeal would materially advance the ultimate
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termination of litigation, courts look to “(1) whether the need for trial would be eliminated; (2)
whether the trial would be simplified by the elimination of complex issues; and (3) whether
discovery could be conducted more expeditiously and at less expense to the parties.” Patrick v.
Dell Fin. Servs., 366 B.R. 378, 387 (M.D. Pa. 2007).
III.

Analysis1

Because of the procedural posture of this case, the Court concludes that the requirements
for interlocutory appeal are not met at this time. The Court finds that not all of the necessary
elements are present and, even if they were, the Court would exercise its discretion not to certify
until after a final determination on certification.
The Court notes preliminarily that, with respect to all questions raised by the Defendant,
the Court’s opinion is merely conditional. The Court has ruled only that Plaintiffs are entitled to
provide notice and take discovery as to the putative class. It has not made a final ruling on
certification, and will not do so until discovery is complete with respect to the putative class.
While the Court understands that discovery may result in some expense, the Court is also not
persuaded to grant interlocutory appeal merely because discovery may be expensive. To this
end, the Court finds instructive the decision in Craig v. Rite Aid Corporation, Civ. No. 08-2317,
2010 WL 1994888 (M.D. Pa. Feb. 4, 2010), and would refer Defendants to that opinion. The
defendants’ arguments in that case were similar to those put forth here, and the procedural
posture was virtually identical.

For example, the Court there had granted conditional

certification, id. at *1, just as this Court has done.

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The Court does not summarize the parties’ arguments in detail because they are simply
summarized: Defendant argues that each question for which it seeks certification satisfies the
interlocutory standard, and Plaintiff argues they do not. The Court has considered all arguments,
but does not regurgitate them for the sake of judicial economy.
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The defendants in Craig likewise argued that the Third Circuit needed to “determine the
appropriate quantum and type of evidence to consider in evaluating the propriety of conditional
certification and the extent to which a district court should consider the manageability of the
proposed collective action.” Id. at *2. This argument mirrors the instant Defendant’s arguments
here that dispute the Court’s analysis of Dukes2 and its modest factual showing determination.3
If both of these disputes remain after final certification, the Court will reconsider interlocutory
appeal at that time, but finds such a motion premature at this stage. The Craig defendants also

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The Dukes case addressed Rule 23 class actions. See Dukes, 131 S.Ct. 2541, 2547 (“We
consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil
Procedure 23(a) and (b)(2).”). This case, on the other hand, was decided under 29 U.S.C. §
216(b), as incorporated into the ADEA via 29 U.S.C. § 626(b). The Court would note that, while
the Court of Appeals for the Third Circuit has not directly addressed the issue of whether Rule
23 and collective action cases are governed by similar standards, at least one other Circuit Court
has. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 n. 12 (11th Cir. 1996) (“[I]t is clear that
the requirements for pursuing a § 216(b) class action are independent of, and unrelated to, the
requirements for class action under Rule 23 of the Federal Rules of Civil Procedure.”). Even so,
this Court did not flatly refuse to apply Dukes, as Defendant’s question on certification would
indicate. Instead, the Court noted that, “even if Wal-Mart was applicable, it would not lead this
Court to conclude that conditional certification should be denied.” (Docket No. 179 at 27 n. 13)
(emphasis in original). Thus, what the Defendant here is actually challenging is this Court’s
application of the Dukes standard to the facts before it.
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With respect to this determination, Defendant asserts that this Court “altered the Third Circuit
standard from a modest showing that the proposed class of plaintiffs were similarly situated as a
result of a single policy or plan ‘infected’ by discrimination, to just a ‘single policy or plan.’”
(Docket No. 187 at 12-13). To the contrary, the Court merely held that it would not allow
Defendant to skirt the conditional certification process by introducing statistical evidence when
the Plaintiffs had not done so, nor were they so required. Instead, the Court considered all of the
evidence and determined that the class could move forward. That evidence that the Court cited
included, inter alia, the fact that there was a single, company-wide RIF, that all named and
proposed plaintiffs were over 50 years of age at termination, the affirmative refusal to provide at
least one of those plaintiffs the commonly-granted opportunity to apply for alternative positions,
evidence that “adaptability” was considered, and the lack of documentation about the RIF. (See
id. at 24-25). Additional evidence that the Court did not expressly rely on in that portion of the
opinion include the multiple affidavits filed by named and proposed plaintiffs. (See Docket Nos.
88-8 (affidavits of named Plaintiffs Csukas, Cunningham, Karlo, Marietti, McLure,
Meixelsberger and Thompson); 88-9 (affidavits of potential opt-in Plaintiffs Clawson, Shaw and
Voeltzel)).
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raised the specter of discovery costs, Craig, 2010 WL 1994888 at *2, just as Defendant does
here. (See Docket No. 187 at 14).
The only novel issue in this case when compared to Craig is the sub-group holding. The
Court notes that this holding may have no bearing at the next stage of certification. Depending
upon what evidence is uncovered during discovery, the sub-group claim may expand to
encompass all members of the over-40 class, or it may be that the class dissolves completely.
With such uncertainty remaining, even the Court’s sub-group holding cannot be qualified as a
“controlling question of law” at the conditional certification stage.
With the foregoing in mind, the Court closes with a particularly relevant passage from
Craig:
We remind Defendants that their concerns about the propriety of this
proposed class can be addressed at the final certification stage, after the potential
Plaintiffs have been given an opportunity to opt-in to the action and after
discovery has been completed. We recognize that discovery may be somewhat
costly… [but that factor does not] trump our legal analysis in any event.”
Craig, 2010 WL 1994888 at *3.
IV.

Conclusion

With the foregoing in mind, IT IS HEREBY ORDERED that the Defendant’s motion
[186] is DENIED, without prejudice to renewal after the Court’s final determination on
collective action certification.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: July 20, 2012
cc/ecf: All counsel of record.

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