18th Annual Workplace Class Action Report - 2022 Edition

74 Annual Workplace Class Action Litigation Report: 2022 Edition discrimination by systematically terminating older workers to reduce the age of its workforce in violation of the Age Discrimination in Employment Act (“ADEA”). Plaintiffs filed a motion for conditional certification of a collective action, which the Court denied. Plaintiffs asserted that Defendants “developed a plan or program to reduce the average age” of the workforce. Id. at *2. Plaintiffs contended that in 2015, Defendants began openly discussing that the average age of the workforce was over 50 and that Defendants “would work hard to reduce the average age.” Id. Plaintiffs also asserted that Defendants’ executives discussed how Defendants needed more “younger, inexperienced” employees and contractors and fewer older, experienced employees and contractors. Plaintiffs argued that Defendants started methodically terminating or demoting older employees and replacing them with substantially younger employees. In most cases, Plaintiffs alleged that Defendants informed the affected employees that the decision was not based on job performance and, in many cases, the removed employees were replaced by significantly younger employees whom the removed employees had previously trained. Plaintiffs further alleged that some older employees were also placed on arduous Performance Improvement Plans (“PIPs”) with subjective requirements that led to their demotion or termination. Defendants argued that Plaintiffs had not alleged a common plan or scheme of age discrimination such that conditional certification would be appropriate. Instead, they contended that Plaintiffs simply described separate, independent employment decisions not bound together by a single decision, policy, or plan. The Court disagreed. It found that Defendants’ repeated statements about wanting to reduce the age of its workforce, in conjunction with its subsequent terminations and demotions of older employees, sufficiently indicated a common plan or scheme for purposes of conditional certification. In support of their motion, Plaintiffs had submitted six declarations from older workers previously employed by Defendants. All six testified about the comments regarding the age of the workforce and the subsequent employment actions involving older workers. Defendants argued these terminations each had individual factual differences that prevented conditional certification, but the Court rejected these arguments at the initial notice stage. Taking all of the Plaintiffs’ evidence into account, the Court conditionally certified the collective action. (xi) Eleventh Circuit Bartholomew, et al. v. Lowe ’ s Home Centers, 2021 U.S. Dist. LEXIS 152623 (M.D. Fla. Aug. 13, 2021). Plaintiffs, two retail sales associate employees, filed a class and collective action alleging that Defendant’s termination of allowance pay resulted in a disparate impact against older employees in violation of the Age Discrimination in Employment Act (“ADEA”). Plaintiffs filed a motion for conditional certification of their ADEA claims, and the Court granted the motion. Plaintiffs sought conditional certification of a collective action consisting of “all persons employed by Defendant in an hourly position that worked for Defendant prior to February 11, 2012 and received an Allowance or were eligible to receive an allowance through February 1, 2020, that were born on or before August 1, 1979.” Id . at *2. In support of their motion, Plaintiffs offered their own declarations and the names and ages of several employees who wanted to opt-in to the action. Plaintiffs averred that they personally knew other employees who desired to opt-in, and the employees’ comments published on an internal blog suggested that some employees were upset with the termination of the allowance pay. Id . at *6. Defendant argued that Plaintiffs’ declarations were unsubstantiated and insufficient to make the requisite showing required to establish that they were similarly-situated to the members of the proposed collective action. The Court, however, reasoned that pertinent case law authorities had rejected such contentions as a basis to deny conditional certification at the initial stages of ADEA litigation. Defendant also contended that the Court should not conditionally certify the collective action because the underlying ADEA claim lacked merit. The Court explained that it was not appropriate to address the merits of Plaintiffs’ claims at the conditional certification stage. The Court found that Plaintiffs satisfied their burden to demonstrate that there were others similarly-situated such that conditional certification was warranted. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action as to Plaintiffs’ ADEA claims. (xii) District Of Columbia Circuit No reported decisions.