18th Annual Workplace Class Action Report - 2022 Edition

72 Annual Workplace Class Action Litigation Report: 2022 Edition action claims should not be conditionally certified because they were not similarly-situated, as Plaintiffs established sufficient facts under the fairly lenient conditional certification standard from which Plaintiffs could advance an ADEA collective action. Id . at *18. The Court concluded that Plaintiffs’ complaint and declarations described an alleged policy or plan resulting in adverse employment decisions, harassment, and/or retaliation of employees based on their age, and that the alleged age bias was reported on multiple occasions to, but not addressed by, Defendant’s Human Resources Department. Id . at *20. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of their ADEA claims. (v) Fifth Circuit No reported decisions. (vi) Sixth Circuit No reported decisions. (vii) Seventh Circuit No reported decisions. (viii) Eighth Circuit No reported decisions. (ix) Ninth Circuit Forsyth, et al. v. HP Inc., 2021 U.S. Dist. LEXIS 71303 (N.D. Cal. April 13, 2021). Plaintiffs brought a collective action alleging that Defendants terminated their employment in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), the California Fair Employment and Housing Act (“FEHA”), and other California employment laws. Plaintiffs filed a motion for conditional certification of the ADEA claims, which the Court granted. Plaintiffs alleged that Defendants had implemented a company-wide initiative to replace thousands of existing, older workers with new, younger employees as a means to restructure, recalibrate, and reshape the HP workforce to make it younger. Defendants initiated the "2012 Workforce Reduction Plan" ("WFR") that both Defendants implemented for years, which Plaintiffs alleged had the goal of replacing employees that were terminated under the WFR, to be replaced with younger “career” employees. Plaintiffs sought conditional certification of two nationwide ADEA collective actions, one against each of the two Defendants for all employees over the age of 40 who were terminated subject to the WFR. In support of their motion, Plaintiffs offered several declarations and documents received upon their termination that described how the respective "Workforce Reduction Plan Summary Plan Descriptions" all had language describing a single plan and confirm they were used as part of the same Workforce Restructuring Initiative involving the same group of terminated employees identified in Plaintiffs’ proposed collective actions. Id . at *20. Plaintiffs also submitted nearly identical "Workforce Reduction (WFR) Frequently Asked Questions (FAQs)" documents with their separate declarations, which explained that the employment terminations occurred for the same reasons and were implemented by both Defendants using the same WFR processes. Id . at *21. The Court ruled that the declarations, in conjunction with the factual allegations contained in the complaint, were sufficient to establish that Plaintiffs were similarly-situated to the membership of the proposed collective action groups. The Court further determined that the common implementation of the Workforce Restructuring Initiative across both Defendants was a "shared issue of fact" that was "material" to the claims. Id . Defendants asserted that the initiative was done in response to financial and business circumstances, and not due to any discriminatory animus. However, the Court reasoned that Defendants’ rebuttals went to the merits of Plaintiffs’ claims such that they were unsuitable for consideration at the conditional certification stage. Accordingly, the Court found that Plaintiffs met their burden in showing that the membership of the proposed collective actions who were 40 years or older when they were terminated were similarly-situated for the purposes of § 216(b). Id . at *22-23. For these reasons, the Court granted Plaintiffs’ motion for conditional certification. Kincheloe, et al. v. American Airlines, Inc., 2021 U.S. Dist. LEXIS 107391 (N.D. Cal. June 7, 2021). Plaintiffs, a group of flight attendants, filed a collective action alleging that Defendant discriminated against older