Heath v. Google Inc.

Decision Date05 October 2016
Docket NumberCase No. 15–cv–01824–BLF
Citation215 F.Supp.3d 844
CourtU.S. District Court — Northern District of California
Parties Robert HEATH, et al., Plaintiffs, v. GOOGLE INC., Defendant.

Dow Wakefield Patten, Smith Patten, San Francisco, CA, Daniel A. Kotchen, Daniel Lee Low, Kotchen & Low LLP, Washington, DC, George S. Duesdieker, Law Office of George Duesdieker, Menlo Park, CA, for Plaintiffs.

Brian Davis Berry, Thomas Michael McInerney, Jill Vogt Cartwright, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., San Francisco, CA, Anthony Craig Cleland, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Atlanta, GA, for Defendant.


[Re: ECF 107]

BETH LABSON FREEMAN, United States District Judge

How does age factor into one's Googleyness?1 Plaintiffs Cheryl Fillekes and Robert Heath allege that it plays a significant role, and seek to conditionally certify two collective actions based on disparate treatment under the federal Age Discrimination in Employment Act ("ADEA"). Mot., ECF 107. Defendant Google Inc. ("Google") contests Plaintiffs' allegations and asks the Court to find that a manageable collective action does not exist here. Opp. 2, ECF 108. For the reasons stated below, the Court GRANTS Plaintiff Cheryl Fillekes' motion for conditional certification and DENIES Plaintiff Robert Heath's partial joinder.


In April 2015, Heath filed his original complaint asserting age discrimination under the ADEA and the California Fair Employment and Housing Act ("FEHA"). Compl., ECF 1. Heath pled both claims on behalf of himself and a nationwide Rule 23 class. Id. ¶ 39. In addition, he asserted the ADEA claim as a collective action. Id. at 21 ¶ m.

In June 2015, Google filed a motion to dismiss. ECF 16. In response, Heath filed a first amended complaint ("FAC") that omitted any allegations concerning a Rule 23 class claim under FEHA. FAC ¶¶ 51–52, ECF 18. The FAC also joined Cheryl Fillekes as a plaintiff. See generally id. Google answered the FAC. ECF 21. Heath subsequently sought leave to file a second amended complaint to reinstate his FEHA claims as a class action, which Google opposed. ECF 65, 67. The Court denied Heath's motion. ECF 93.

In their FAC, Plaintiffs allege that "Google has engaged in a systematic pattern and practice of discriminating against individuals (including Plaintiffs) who are age 40 and older in hiring, compensation, and other employment decisions with the resultant effect that persons age 40 or older are systematically excluded from positions for which they are well-qualified." FAC ¶ 52, ECF 18. They further allege that Google has engaged in this pattern and practice of discrimination by:

(a) knowingly and intentionally, in the company's hiring and employment practices, treating adversely individuals who are 40 years old and older, and treating preferentially individuals who are under 40 years old, and (b) filling a disproportionately large percentage of its workforce with individuals under 40 years old ... even when there are many individuals age 40 or older who are available and well-qualified for the positions at issue.

Id. ¶ 55.

Fillekes claims that her personal experience reflects age discrimination by Google. Mot. 5, ECF 107. Between 2007 and 2014, Fillekes interviewed with Google on four separate occasions. FAC ¶ 4, ECF 18. "On each occasion, she performed well during her phone interviews and was invited to Google's offices for an in-person interview." Id. Fillekes was never offered a job at Google, and alleges that "Google refused to hire [her] despite her highly-pertinent qualifications and programming experience" because of her age. Id. In support of her allegations, she provides several examples of perceived mistreatment because of her age. For example, Fillekes contends that in May 2010, "[a] Google recruiter told [her] that she needed to put her dates of graduation on her resume ‘so the interviewers [could] see how old [she was].’ " Fillekes Dep. Tr. 152:3–15, Ex. 9 to Mot., ECF 75–9.

Heath similarly claims that his personal experience reflects age discrimination by Google. Joinder 3, ECF 78. In February 2011, Heath was contacted by a Google recruiter for the San Francisco Bay Area. FAC ¶ 19, ECF 18. A Google Software Engineer subsequently interviewed Heath, but Heath was not offered the position. Id. at ¶¶ 22, 29. Heath believes his phone interview was sabotaged "because Google did not have a sincere interest in hiring older workers." Joinder 5, ECF 78. After the interview, Heath filed an ADEA complaint against Google with the Equal Employment Opportunity Commission, which was cross-filed with the California Department of Fair Employment and Housing. FAC ¶ 7, ECF 18.

Now before the Court is Fillekes' motion for conditional certification of a collective action pursuant to 29 U.S.C. § 216(b) and Heath's partial joinder. ECF 107, 78.


The ADEA prohibits discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623(a)(1). The Act further provides that it is to be enforced "in accordance with the powers, remedies and procedures" of designated sections of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 203 et seq. 29 U.S.C. § 626(b). Plaintiffs now request certification of a collective action as prescribed by FLSA § 216(b), which provides, in pertinent part: "An action ... may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b).

Unlike class actions certified under Rule 23, potential members of an ADEA collective action must "opt-in" to the suit by filing a written consent with the Court in order to benefit from and be bound by a judgment. 29 U.S.C. § 216(b) ; Leuthold v. Destination Am., Inc. , 224 F.R.D. 462, 466 (N.D. Cal. 2004). Employees who do not opt-in may bring a subsequent private action. Leuthold , 224 F.R.D. at 466 (citing EEOC v. Pan Am. World Airways, Inc. , 897 F.2d 1499, 1508 n.11 (9th Cir. 1990) ). "[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." Hoffmann–La Roche Inc. v. Sperling , 493 U.S. 165, 171, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).

The determination of whether a collective action under the ADEA is appropriate is within the Court's discretion. See Adams v. Inter–Con Sec. Sys., Inc. , 242 F.R.D. 530, 535 (N.D. Cal. 2007). The named plaintiffs bear the burden to show that they and the proposed class members are "similarly situated." See id. (citing 29 U.S.C. § 216(b) ). The FLSA does not define "similarly situated." Although the Ninth Circuit has not yet articulated the proper test for certification of an ADEA action, district courts in this Circuit generally apply a two–step inquiry in the FLSA context. See, e.g., Leuthold , 224 F.R.D. at 466–67 ; Adams , 242 F.R.D. at 536. The two-step approach distinguishes between conditional certification of the action and final certification. Under the first step, the court makes an initial "notice-stage" determination of whether potential opt-in plaintiffs are similarly situated to the representative plaintiffs, determining whether a collective action should be certified for the sole purpose of sending notice of the action to potential class members. Leuthold , 224 F.R.D. at 466–67 ; Adams , 242 F.R.D. at 536. The sole consequence of conditional certification is the "sending of court-approved written notice," to the purported members of the class. Genesis Healthcare Corp. v. Symczyk , ––– U.S. ––––, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). Those individuals become parties to a collective action only by filing written consent with the court.

For conditional certification at this notice-stage, courts require little more than substantial allegations, supported by declarations or discovery, that "the putative class members were together the victims of a single decision, policy, or plan" and a showing that plaintiffs are "generally comparable to those they seek to represent." Villa v. United Site Servs. of Cal. , No. 5:12-CV-00318-LHK, 2012 WL 5503550, at *13 (N.D. Cal. Nov. 13, 2012) (citation omitted); Stanfield v. First NLC Fin. Serv., LLC , No. C-06-3892-SBA, 2006 WL 3190527, at *2 (N.D. Cal. Nov. 1, 2006) ; see also Morton v. Valley Farm Transp., Inc. , No. C-06-2933-SI, 2007 WL 1113999, at *2 (N.D. Cal. Apr. 13, 2007) (describing burden as "not heavy" and requiring plaintiffs to merely show a "reasonable basis for their claim of class-wide" conduct (internal quotation marks and citation omitted)). Thus, a named plaintiff must show that he or she is similarly situated to the absent members of the collective action and present "some identifiable factual or legal nexus [that] binds together the various claims of the class members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA." Russell v. Wells Fargo & Co. , No. 07-CV-3993-CW, 2008 WL 4104212, at *3 (N.D. Cal. Sept. 3, 2008) ; Sanchez v. Sephora USA, Inc. , No. 11–3396 SBA, 2012 WL 2945753, at *2 (N.D. Cal. July 18, 2012) ("Plaintiff need not show that his position is or was identical to the putative class members' positions; a class may be certified under the [ADEA] if the named plaintiff can show that his position was or is similar to those of the absent class members." (citations and quotation marks omitted)).2

The standard for conditional certification is a lenient one that typically results in certification. Kress v. PricewaterhouseCoopers, LLP , 263 F.R.D. 623, 627–28 (E.D. Cal. 2009)...

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