Karlo v. Pittsburgh Glass Works, LLC, 011017 FED3, 15-3435

Docket Nº:15-3435
Opinion Judge:SMITH, Chief Judge.
Attorney:Samuel J. Cordes [ARGUED] Bruce C. Fox Andrew J. Horowitz Obermayer Rebmann Maxwell & Hippel Counsel for Appellant Rachel E.A. Atterberry David S. Becker [ARGUED] Jennifer L. Fitzgerald Tina C. Wills Freeborn & Peters Robert B. Cottington Cohen & Grigsby Counsel for Appellee Neal D. Mollen [ARGUE...
Judge Panel:Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges
Case Date:January 10, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




No. 15-3435

United States Court of Appeals, Third Circuit

January 10, 2017

Argued November 9, 2016

On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-10-cv-01283 District Judge: The Honorable Terrence F. McVerry

Samuel J. Cordes [ARGUED] Bruce C. Fox Andrew J. Horowitz Obermayer Rebmann Maxwell & Hippel Counsel for Appellant

Rachel E.A. Atterberry David S. Becker [ARGUED] Jennifer L. Fitzgerald Tina C. Wills Freeborn & Peters Robert B. Cottington Cohen & Grigsby Counsel for Appellee

Neal D. Mollen [ARGUED] Paul Hastings Counsel for Amicus Appellee Chamber of Commerce of the United States of America

Michael P. Bracken NT Lakis Counsel for Amicus Appellee Equal Employment Advisory Council

Anne N. Occhialino [ARGUED] Equal Employment Opportunity Commission Counsel for Amicus Appellant Equal Employment Opportunity Commission

Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges


SMITH, Chief Judge.

The Age Discrimination in Employment Act ("ADEA") protects only those individuals who are at least forty years of age. The question in this case is whether a disparate-impact claim is cognizable where a "subgroup" of employees at the upper end of that range-in this case, employees aged fifty and older- were alleged to have been disfavored relative to younger employees.

We answer in the affirmative. Our decision is dictated by the plain text of the statute as interpreted by the Supreme Court. In particular, the ADEA prohibits disparate impacts based on age, not forty-and-older identity. A rule that disallowed subgroups would ignore genuine statistical disparities that could otherwise be actionable through application of the plain text of the statute. Although several of our sister circuits have ruled to the contrary, their reasoning relies primarily on policy arguments that we do not find persuasive.

We will therefore reverse the judgment of the District Court based on its interpretation of the ADEA. We will also vacate the District Court's order excluding the testimony of plaintiffs' statistics expert and remand for further Daubert proceedings. We will affirm in all other respects.


Defendant Pittsburgh Glass Works, LLC ("PGW") manufactures automotive glass in Harmarville, Pennsylvania. PGW also owns (1) GTS Services, a software business, (2) PGW Auto Glass, an automotive replacement-glass distribution business, (3) LYNX Services, an insurance claims administrator, and (4) Aquapel, a glass treatment supplier.

In 2008, the automobile industry began to falter. PGW engaged in several reductions in force ("RIFs") to offset deteriorating sales. The RIF of relevance to this case occurred on March 31, 2009, and terminated the employment of approximately one hundred salaried employees in over forty locations or divisions. Individual unit directors had broad discretion in selecting whom to terminate. PGW did not train those directors in how to implement the RIF. Nor did PGW employ any written guidelines or policies, conduct any disparate-impact analysis, review prospective RIF terminees with counsel, or document why any particular employee was selected for inclusion in the RIF.

Plaintiffs Rudolph A. Karlo, William S. Cunningham, Jeffrey Marietti, David Meixelberger, Mark K. McLure, Benjamin D. Thompson, and Richard Csukas1 worked in PGW's Manufacturing Technology division. They were terminated as part of the March 2009 RIF by their supervisor, Gary Cannon. Each was over fifty years old at the time.

In January 2010, plaintiffs filed charges of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"). Thereafter, they received a Dismissal and Notice of Rights from the EEOC, and this lawsuit followed. Plaintiffs brought a putative ADEA collective action, asserting three claims: (1) disparate treatment, (2) disparate impact, and (3) retaliation as to only Karlo and McLure.

On plaintiffs' motion for conditional certification, the District Court ruled that ADEA subgroups are cognizable, and conditionally certified a collective action to be comprised of employees terminated by the RIF who were at least fifty years old at the time. See Karlo v. Pittsburgh Glass Works, LLC, 880 F.Supp.2d 629 (W.D. Pa. 2012). In addition to the named plaintiffs, eleven individuals opted in. Three voluntarily dismissed their claims and four settled. Four opt-ins remained: Michael Breen, a former production supervisor at a plant in Crestline, Ohio; Matthew Clawson, a former Project Engineer in Evansville, Indiana; Stephen Shaw, a former marketing manager in Pittsburgh, Pennsylvania; and John Titus, a former Area Services Manager in Irving, Texas.

On June 26, 2013, the case was transferred to another district judge. PGW filed a motion to decertify the collective action. On March 31, 2014, the District Court granted the motion, concluding that the collective action should be decertified because the opt-in plaintiffs' claims are factually dissimilar from those of the named plaintiffs. See Karlo, 2014 WL 1317595.

PGW then filed motions to exclude plaintiffs' experts. Of relevance to this appeal, PGW sought to exclude three areas of expert testimony. First, Dr. Michael Campion was prepared to offer statistical evidence in favor of plaintiffs' disparate-impact claim. Second, Dr. Campion intended to offer his expert opinion on "reasonable" human-resources practices during a RIF. And third, Dr. Anthony G. Greenwald proposed to testify as to age-related implicit-bias studies. By Order dated July 13, 2015, the District Court excluded the testimony of each. See Karlo, 2015 WL 4232600.

PGW moved for summary judgment on each claim. On September 3, 2015, the District Court ruled on the motions, granting them in part and denying them in part. See Karlo, 2015 WL 5156913. As to plaintiffs' disparate-impact claims, the District Court granted summary judgment on two grounds: (1) plaintiffs' fifty-and-older disparate-impact claim is not cognizable under the ADEA; and (2) plaintiffs' lack of evidence to support their claim of disparate impact following the exclusion of Dr. Campion's statistics-related testimony. The District Court also granted summary judgment as to plaintiffs' disparate-treatment claims. That ruling has not been appealed. Finally, the District Court denied summary judgment as to Karlo's and McLure's individual retaliation claims.

On October 2, 2015, the District Court certified the disparate-impact and disparate-treatment claims for final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. See Karlo, 2015 WL 5782062. This appeal followed. Plaintiffs seek reversal of the District Court's summary judgment decision and statistics-related Daubert ruling regarding their disparate-impact claims. Plaintiffs also appeal the District Court's other Daubert rulings and its order decertifying the collective action.


The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

The parties dispute whether our jurisdiction extends to one or all named plaintiffs. PGW concedes that Karlo perfected an appeal, but argues that the other remaining named plaintiffs-Cunningham, Marietti, and Meixelberger-were not identified in the Notice of Appeal, and therefore did not preserve their appellate rights under Rule 3(c) of the Federal Rules of Appellate Procedure. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988).2 We conclude that plaintiffs complied with Rule 3(c) with respect to all named plaintiffs.

Rule 3(c)(1)(A) requires a notice of appeal to "specify the party or parties taking the appeal by naming each one in the caption or body of the notice, " but that rule is relaxed where "an attorney [is] representing more than one party." Fed. R. App. P. 3(c)(1)(A). The attorney "may describe those parties with such terms as 'all plaintiffs, ' 'the defendants, ' 'the plaintiffs A, B, et al., ' or 'all defendants except X.'" Id.

The Notice of Appeal here states, "Plaintiffs in the above-captioned case hereby appeal . . . an order . . . entering judgment against Plaintiffs . . . on Plaintiffs' discrimination claims . . . ." A.1 (emphases added). The use of "Plaintiffs" is equivalent to "the defendants" in the example provided by the Rule.3 We have observed that "[t]he purpose of Rule 3(c)'s identification requirement is to provide notice to the court and the opposing parties of the identity of the appellants." In re Cont'l Airlines, 125 F.3d 120, 129 (3d Cir. 1997). Because all of the remaining named...

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