The opinion of the court was delivered by: Judge Nora Barry Fischer
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.
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. (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).
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).
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 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).
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 ¶¶ 104-107; 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 (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).
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. 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).*fn1
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 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.
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."*fn2 (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 ...