18th Annual Workplace Class Action Report - 2022 Edition

IV. Significant Collective Action Rulings Under The Age Discrimination In Employment Act Annual Workplace Class Action Litigation Report: 2022 Edition 71 Multiple plaintiff age discrimination claims under the Age Discrimination in Employment Act (“ADEA”) are not governed by Rule 23. Instead, these claims are known as “collective actions,” and are governed by the litigation procedures in the Portal-to-Portal Act at 29 U.S.C. § 216(b). Courts and litigants commonly refer to these lawsuits as “ § 216(b) actions.” Collective actions brought under the ADEA raise “opt-in” issues quite similar to those arising under the Fair Labor Standards Act (“FLSA”). In other words, class members (technically, “collective action” members, as class actions do not exist under the § 216(b) framework) do not become part of the litigation unless and until they affirmatively opt-in to the lawsuit (whereas under Rule 23, a class member must opt-out of the class action or otherwise will be bound by any judgment in the litigation). The plaintiffs’ bar typically utilizes the FLSA’s two-step procedure under § 216(b) to obtain conditional certification of ADEA collective action claims. This approach, based upon the Tenth Circuit’s seminal decision in Thiessen, et al. v. General Electric Capital Corp. , 267 F.3d 1095 (10th Cir. 2001), involves substituting “pattern or practice” claims for evidence of commonality and typicality. The pattern or practice vehicle by definition requires a higher threshold of proof, but plaintiffs have taken advantage of the more lenient step-one process in the ADEA’s two-step procedure for certifying collective actions. In the “notice” or “conditional” certification stage, there is a lower threshold of proof than in cases brought under Rule 23, where Supreme Court decisional law requires a “rigorous analysis” of a plaintiff’s claims and evidence. Conditional certification under the ADEA authorizes plaintiffs to send class notices based on minimal evidentiary showings and enables them to gain leverage over employers who must then endure extensive discovery as plaintiffs seek to gather further proof of their claims. A. Cases Certifying Or Refusing To Certify ADEA Collective Action Claims (i) First Circuit No reported decisions. (ii) Second Circuit No reported decisions. (iii) Third Circuit No reported decisions. (iv) Fourth Circuit Williams, et al. v. Charlotte-Mecklenburg Hospital Authority, 2021 U.S. Dist. LEXIS 234368 (W.D.N.C. Dec. 7, 2021). Plaintiffs, a group of current and former Pediatric Cancer Unit employees at Atrium Health Levine Children’s Hospital, filed a class and collective action alleging that Defendant, and particularly their supervisor, subjected them to discriminatory, harassing, and retaliatory behavior on the basis of their age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") and on the basis of their race (African-American) in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Plaintiffs filed a motion for conditional certification of a collective action of their ADEA claims. Defendant filed a motion to strike the collective and class action claims. The Magistrate Judge recommended that Defendant’s motion be denied, and Plaintiffs’ motion for conditional certification be granted. On Rule 72 review, the Court adopted the Magistrate Judge’s recommendations. The Court determined that at the motion to dismiss stage, it must only consider whether the complaint alleged sufficient facts by which the Plaintiffs could possibly make out class and collective action claims. The Court agreed with the Magistrate Judge that Plaintiffs pled sufficient facts from which the class and collective actions could plausibly be certified, and that dismissal of the class and collective action claims was inappropriate under the motion to dismiss standard. Id . at *14. The Court reasoned that Plaintiffs asserted numerous factual allegations to support claims against Defendant of discrimination, harassment, and retaliation under the ADEA and Title VII. Further, the Court rejected Defendant’s argument that Plaintiffs’ ADEA collective