Behr v. AADG, Inc.
| Decision Date | 06 October 2015 |
| Docket Number | No. C14–3075–LTS,C14–3075–LTS |
| Citation | 136 F.Supp.3d 1012 |
| Parties | Dennis Behr, and Employees Similarly Situated to Him, Plaintiff, v. AADG, Inc., d/b/a Curries, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Mark D. Sherinian, Melissa C. Hasso, Sherinian & Hasso Law Firm, West Des Moines, IA, for Plaintiff,
Sarah Elizabeth Crane, Deborah M. Tharnish, Davis, Brown, Koehn, Shors & Roberts, PC, Des Moines, IA, for Defendant.
Dennis Behr (Behr) filed this action against AADG, Inc., d/b/a/ Curries (AADG), on November 21, 2014, alleging a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. This case has been referred to me with the consent of the parties for the conduct of all further proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c). Doc. No. 10.
Behr has filed a motion (Doc. No. 15) for conditional class certification and court authorized notice, along with a proposed notice (Doc. No. 15–4). AADG has filed a resistance (Doc. No. 20) and Behr has filed a reply (Doc. No. 22).1 While Behr has requested oral argument, I find that the issues have been sufficiently briefed by both sides so as to render oral argument unnecessary. See N.D. Ia. L.R. 7(c). The motion is fully submitted and ready for decision.
On February 6, 2014, AADG implemented a reduction in force (RIF) plan to cut $1.4 million in indirect personnel expenses at its plant in Mason City, Iowa. Behr was one of 14 employees laid off as part of the RIF. Thirteen of those 14 employees were over the age of 40 at the time of the RIF. This group of 13 former employees is the class Behr seeks to certify.
By agreement, and with this court's consent, the parties engaged in limited discovery concerning class certification issues. Doc. No. 11. In support of his motion, Behr has submitted certain of AADG's answers to interrogatories, along with affidavits from three members of the potential class: Dale Glen, Ronald White and Glenn Willier. Doc. Nos. 15–1, 15–2, 15–3 and 19. Glen states that he was a 51 year-old manufacturing engineer at the time of the RIF and that his position was not actually eliminated. Instead, he states that he was replaced by a new, younger employee, approximately 25 years-old.
White states that he was a 67 year-old shipping manager at the time of the RIF and that his job duties were assumed by a younger, less-experienced employee. He also states that shortly before the RIF, he was asked by AADG's director of human services if he was planning to retire soon. According to White, he responded by stating that he did not plan to retire.
Willier states that he was a 65 year-old maintenance mechanic at the time of the RIF and that he was the oldest maintenance mechanic in the maintenance department. He also states that shortly before the RIF, he had made arrangements with AADG under which he would begin to work a reduced schedule, but never had the opportunity to work under that reduced schedule before the RIF. Willier states that all of the maintenance mechanics who were younger than him retained their jobs after the RIF.
In support of its resistance, AADG has submitted (a) certain other of its answers to interrogatories, (b) the affidavit of Vicki Gordon, its director of human resources, and (c) various records. Doc. No. 21–1, 21–2. In her affidavit, Gordon states that approximately 175 employees were eligible for inclusion in the RIF. Doc. No. 21–2 at 2. AADG's records show that only 26 of those employees, or about 15%, were under the age of 40 when the RIF occurred. Doc. No. 21–4. Gordon states that the employees chosen for discharge were selected for a variety of reasons, including the elimination of their positions, their stated intentions concerning retirement, performance issues and status as part-time employees. Doc. No. 21–2 at 2. According to Gordon, each affected employee was notified of his or her termination on February 17, 2014, and all signed agreements entitled "Separation Agreement, General Release and Covenant Not to Sue." Id.
The ADEA allows an employee to bring an action on his or her own behalf and on behalf of other employees similarly situated to enforce the provisions of the ADEA. 29 U.S.C. §§ 216(b), 626(b) ; Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 167, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Unlike the typical class action suit governed by the Federal Rules of Civil Procedure, "plaintiffs wishing to sue as a class under [the] ADEA must utilize the opt-in class mechanism provided in 29 U.S.C. § 216(b)." Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir.2001). "[O]nce an ADEA action is filed, the court has a managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way." Hoffman n –La Roche, 493 U.S. at 171, 110 S.Ct. 482. The court must exercise its discretion to facilitate notice to potential plaintiffs while avoiding the " ‘stirring up’ of litigation through unwarranted solicitation." Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 890 (N.D.Iowa 2008) (quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D.Minn.1991) ).
Section 216(b) does not define when plaintiffs are "similarly situated." Id. A majority of federal courts, including this court, have utilized a two-step approach to address this issue. Id. at 891. Here, neither party advocates a different approach. Thus, I will apply the two-step analysis to this case.
The two-step approach distinguishes between conditional class certification and a final class certification. Id. Conditional certification is generally completed at the notice stage, when only limited discovery has taken place, and applies a lenient standard to determine whether the potential plaintiffs are similarly situated. Id. The second step, final certification, is addressed after notice, discovery and the time for opting-in has occurred. Id. At that time a "substantial record has been amassed," which allows the court to make a factual determination. Campbell v. Amana Co., L.P., No. C99–75 MJM, 2001 WL 34152094, at *2 (N.D.Iowa Jan. 4, 2001). The standard for whether the opt-in plaintiffs are "similarly situated" at the second stage is stricter than it is at the first stage. Bouaphakeo, 564 F.Supp.2d at 890.
At the initial stage, the plaintiff must provide "some factual basis from which the court can determine if similarly situated potential plaintiffs exist." Id. at 892 (quoting Salazar v. Agriprocessors, Inc., No. 07–CV–1006–LRR, 2008 WL 782803, at *5 (N.D.Iowa March 17, 2008) (in turn quoting Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574, 577 (N.D.Iowa 2005) ). Under this standard, conditional certification "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan." Id. (quoting Young v. Cerner Corp., 503 F.Supp.2d 1226, 1229 (W.D.Mo.2007) (in turn quoting Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 815 (W.D.Mo.2005) ). A plaintiff need only make a modest factual showing at the first stage because there has been limited discovery. Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574, 577 (N.D.Iowa 2005). Since the standard at the first step is lenient, conditional certification is "generally granted." Campbell, 2001 WL 34152094, at *2.
Even at this initial stage, however, some evidence is required. The plaintiff must show that similarly situated persons exist and want to opt-in. Bouaphakeo, 564 F.Supp.2d at 892. "Unsupported assertions of widespread violations are not sufficient." Evancho v. Sanofi–Aventis U.S. Inc., No. 07–2266, 2007 WL 4546100 at *2 (D.N.J.2007) (citing Freeman v. Wal–Mart Stores, Inc., 256 F.Supp.2d 941, 945 (W.D.Ark.2003) ). A court may deny conditional classification if the action "arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice." Aguirre v. SBC Communications, Inc., No. H–05–3198, 2007 WL 772756, at *9 (S.D.Texas Mar. 12, 2007) (internal citations omitted). Courts consider factors such as "whether affidavits of potential plaintiffs have been submitted, whether there is evidence of a widespread discriminatory plan, and whether, as a matter of sound management, a manageable class exists." Bouaphakeo, 564 F.Supp.2d at 892 (internal citations omitted).
I first must determine whether this case is still at the notice stage, has reached the second stage, or is somewhere in between. When only limited discovery has occurred and the plaintiff is requesting only conditional certification, it is more equitable to begin with a first-step analysis. Bouaphakeo, 564 F.Supp.2d at 894. The ADEA has a remedial purpose, and a lenient standard for conditional class certification facilitates that purpose. Jackson v. New York Telephone Co., 163 F.R.D. 429, 432 (S.D.N.Y.1995).
Here, the parties clearly intended that this would be a stage one analysis. On February 23, 2015, they filed a joint motion (Doc. No. 9) for entry of a scheduling order in which they proposed a two-stage discovery process, with stage one being "limited to issues concerning conditional certification" and stage two being discovery "encompassing the merits of the case." Doc. No. 9 at 2. I granted the motion by order (Doc. No. 11) filed February, 24, 2015, thus establishing a deadline for "discovery regarding class certification" and deadlines for briefing plaintiff's motion for conditional class certification. By design, this case is at stage one of the two-stage class certification process.
As noted above, at this stage the plaintiff need only produce some evidence that the potential plaintiffs...
To continue reading
Request your trial