FCA-Williams MTD

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN MARLIN WILLIAMS, PAMELA WILLIAMS CARTHENS, JEROME THOMSON, PhD, BRENDA DEFORREST, LEVEN WEISS, J.D., MICHAEL D. BROWN, J.D., CORA WILLIAMS, and ANTHONY HILL, on behalf of themselves and all others similarly situated, Plaintiffs,

CASE NO. 17-10097 HON. LAURIE J. MICHELSON ORAL ARGUMENT REQUESTED

vs.

FCA US LLC, Defendant.

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) 888 W. Big Beaver Road Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com PITT, MCGEHEE, PALMER & RIVERS, PC Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Carey S. McGehee (P42318) 117 West Fourth Street, Suite 200 Royal Oak, MI 48067 Tel: 248-398-9800 mpitt@pittlawpc.com Attorneys for Plaintiffs

MILLER, CANFIELD, PADDOCK & STONE, P.L.C. Jerome R. Watson (P27082) M. Misbah Shahid (P73450) 150 W. Jefferson Ave., Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com Shahid@millercanfield.com LITTLER MENDELSON, P.C. Daniel E. Turner (Ga. Bar No. 719330) Tasha K. Inegbenebor (Ga. Bar. No. 382905) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com Admitted to the Eastern District of Michigan on June 23, 2011 tinegbenebor@littler.com Admitted to the Eastern District of Michigan on May 11, 2017 Attorneys for Defendant

__________________________________________________________________ DEFENDANT’S MOTION TO COMPEL ARBITRATION; MOTION TO DISMISS; AND/OR MOTION TO STRIKE CLASS ALLEGATIONS IN THE SECOND AMENDED COMPLAINT

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NOW COMES Defendant FCA US LLC (“Defendant”), by and through its attorneys, Miller, Canfield, Paddock & Stone, P.L.C. and Littler Mendelson, P.C., and in answer to Plaintiffs’ Second Amended Complaint (Dkt. 8) (“Complaint”), moves this Court to compel arbitration, and/or dismiss the Complaint in its entirety, and/or strike the class allegations in the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), 12(f), and 23(d)(1)(D).

In support of its Motion,

Defendant states as follows: 1.

On March 16, 2017, Plaintiffs filed the Complaint alleging several

claims on behalf of themselves and similarly situated individuals against Defendant.

2.

The named plaintiffs are Marlin Williams (“M. Williams”), Pamela

Williams Carthens, Jerome Thompson, PhD, Brenda DeForrest, Leven Weiss, J.D., Michael D. Brown, J.D., Cora Williams (“C. Williams”), and Anthony Hill (collectively referred to as “Plaintiffs”).

3.

Plaintiffs, on behalf of themselves and all similarly situated

individuals, the existence of which Defendant denies, allege that Defendant engaged in disparate impact race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. (“Title VII”) (Count I), and the Michigan Elliott-Larsen Civil Rights Act, M.C.L. 37.2201, et seq. (“ELCRA”) (Count III).

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4.

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Although the Complaint is not a model of clarity, Plaintiffs on behalf

of themselves and a purported class of certain African American employees, also allege that Defendant engaged in intentional race discrimination in violation of 42 U.S.C. § 1981 (Count II).

5.

Plaintiff M. Williams individually alleges that Defendant engaged in

retaliation in violation of Title VII (Count IV) and the ELCRA (Count V).

6.

Finally, Plaintiff C. Williams alleges that Defendant engaged in race

discrimination (wrongful termination) in violation of Title VII (Count VI) and the ELCRA (Count VIII), as well as retaliation in violation of Title VII (Count VII) and the ECLRA (Count IX).

7.

This Court should entirely dismiss Plaintiffs’ individual and class

allegations in the Complaint (Counts I - IX), based on the following multiple and independent grounds: a.

All Plaintiffs entered into a written and binding arbitration agreement, which expressly covers allegations of discrimination and retaliation and prohibits or does not reference class action claims, thus all claims (Counts I-IX) should be compelled to individual binding arbitration;

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b.

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The claims of six of the eight Plaintiffs’ are untimely because they were not asserted within the contractually agreed upon limitation period of six months (or 180 days);

c.

Six of the eight Plaintiffs fail to assert any facts necessary to support a claim of individual, let alone class, discrimination, requiring dismissal of all claims (Counts I-III) respecting these Plaintiffs;

d.

All of Plaintiffs’ Title VII claims (Count I and portions or all of Counts IV, VI, and VII) are time barred because Plaintiffs failed to exhaust their administrative remedies;

e.

All of Plaintiffs’ disparate impact claims (Counts I and III, and Count II to the extent it seeks relief based upon disparate impact) fail because the Complaint does not identify a specific facially neutral policy, does not allege a causal nexus between any of Defendant’s practices and alleged race discrimination, and alleges solely intentional discrimination; and

f.

All Plaintiffs lack standing to assert class claims and fail to plead the requisite elements of Fed. R. Civ. P. 23.

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8.

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Defendant sought concurrence in the relief requested in compliance

with Local Rule 7.1, which was not received, thereby making this Motion necessary.

WHEREFORE, for the reasons stated above and discussed in the attached Brief in Support, Defendant respectfully requests that this Court grant its request and enter an order compelling arbitration, and/or dismissing the Complaint in its entirety, and/or striking the class allegations in the Complaint, with prejudice.

Respectfully submitted,

Dated: May 15, 2017

/s/ Jerome R. Watson (P27082) Miller, Canfield, Paddock & Stone, P.L.C. Attorney for Defendant 150 West Jefferson Ave., Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN MARLIN WILLIAMS, PAMELA WILLIAMS CARTHENS, JEROME THOMSON, PhD, BRENDA DEFORREST, LEVEN WEISS, J.D., MICHAEL D. BROWN, J.D., CORA WILLIAMS, and ANTHONY HILL, on behalf of themselves and all others similarly situated, Plaintiffs,

CASE NO. 17-10097 HON. LAURIE J. MICHELSON ORAL ARGUMENT REQUESTED

vs.

FCA US LLC, Defendant.

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) 888 W. Big Beaver Road Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com

MILLER, CANFIELD, PADDOCK & STONE, PLC Jerome R. Watson (P27082) M. Misbah Shahid (P73450) 150 W. Jefferson Ave., Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com Shahid@millercanfield.com

PITT, MCGEHEE, PALMER & RIVERS, PC Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Carey S. McGehee (P42318) 117 West Fourth Street, Suite 200 Royal Oak, MI 48067 Tel: 248-398-9800 mpitt@pittlawpc.com Attorneys for Plaintiffs

LITTLER MENDELSON, P.C. Daniel E. Turner (Ga. Bar No. 719330) Tasha K. Inegbenebor (Ga. Bar. No. 382905) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com Admitted to the Eastern District of Michigan on June 23, 2011 tinegbenebor@littler.com Admitted to the Eastern District of Michigan on May 11, 2017 Attorneys for Defendant

__________________________________________________________________ BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL ARBITRATION; MOTION TO DISMISS; AND/OR MOTION TO STRIKE CLASS ALLEGATIONS IN THE SECOND AMENDED COMPLAINT

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TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES .................................................................................. iii STATEMENT OF ISSUES PRESENTED..............................................................ix STATEMENT OF CONTROLLING OR MOST APPROPRIATE AUTHORITY ..........................................................................................................xi PRELIMINARY STATEMENT ..............................................................................1 I.

PLAINTIFFS ARE CONTRACTUALLY BOUND TO ARBITRATE THEIR CLAIMS ON AN INDIVIDUAL BASIS........3 A.

Applicable Arbitration Commitments .......................................4

B.

EDRP Plaintiffs Agreed To Individual Arbitration ...................5

C.

1995 EDRP Plaintiffs Agreed To Individual Arbitration..........7

D.

The EDRP Is Fully Enforceable As To All Plaintiffs................8

E. II.

III.

1.

The EDRP Is Fully Enforceable As To The EDRP Plaintiffs.........................................................................10

2.

The EDRP Is Fully Enforceable As To The 1995 EDRP Plaintiffs As Well ...............................................13

The Court Should Require Plaintiffs To Proceed with Arbitration On An Individual Basis.........................................14

THE COURT SHOULD ALSO DISMISS SIX OF THE PLAINTIFFS’ CLAIMS IN THEIR ENTIRETY AS BEING TIME BARRED .................................................................................16 A.

Time Barred Plaintiffs Agreed That They Must Bring Any Employment-Related Claims Within 6 Months (or 180 Days) .................................................................................16

B.

Michigan Law Requires Courts To Enforce Contractually Shortened Limitations Periods.................................................17

C.

The Time Barred Plaintiffs’ Class Claims Fail........................20

PLAINTIFFS CARTHENS, THOMPSON, DEFORREST, WEISS, BROWN AND HILL FAIL TO STATE A CLAIM OF DISCRIMINATION...........................................................................21

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COUNT I MUST BE DISMISSED BECAUSE PLAINTIFFS DID NOT TIMELY EXHAUST THEIR ADMINISTRATIVE REMEDIES ........................................................................................23 A.

C. Williams’ Charges Do Not Mention Class Claims Or Her 2014 PLM Rating..............................................................24

B.

M. Williams’ 2017 EEOC Charge Does Not Raise A Timely Issue About 2014 Or 2015 PLM Ratings....................26

V.

PLAINTIFFS FAIL TO ALLEGE A PLAUSIBLE DISPARATE IMPACT CLAIM IN COUNTS I AND III. ...............26

VI.

PLAINTIFFS’ CLASS CLAIMS SHOULD BE DISMISSED OR STRICKEN IN THEIR ENTIRETY FOR LACK OF STANDING AND FAILURE TO PLEAD RULE 23 REQUIREMENTS .............................................................................33 A.

Plaintiffs Lack Standing To Pursue The Class Claims Asserted In The Complaint ......................................................33

B.

Fed. R. Civ. P. 23 Prerequisites For Proceeding On A Class Basis Are Not Sufficiently Pled .....................................35

CONCLUSION.......................................................................................................39

ii

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TABLE OF AUTHORITIES Page(s) Cases Adams v. City of Jackson, 742 F.3d 720 (7th Cir. 2014) ..............................................................................33 AlixPartners, LLP v. Brewington, 836 F.3d 543 (6th Cir. 2016) ..............................................................................15 American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013)........................................................................................14 Amini v. Oberlin Coll., 259 F.3d 493 (6th Cir. 2001) ..............................................................................21 Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir. 1990) ............................................................................15 Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................22 AT&T Mobility, LLC v. Concepcion, 563 U.S. 333 (2011)........................................................................................8, 14 Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426 (6th Cir. 2008) ..............................................................................21 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)............................................................................................38 Blum v. Yaretsky, 457 U.S. 991 (1982)............................................................................................34 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)............................................................................................11 Clark v. DaimlerChrysler Corp., 706 N.W.2d 471 (Mich. Ct. App. 2005).............................................................19

iii

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Clemons v. Metro. Gov. of Nashville, 664 F. App’x 544 (6th Cir. 2016) .................................................................23, 26 Costa v. Daimler Chrysler Corp., No. 244743, 2004 WL 1224915 (Mich. Ct. App. June 3, 2004)........................19 Dallas v. Alcatel-Lucent USA, Inc., No. 09-14596, 2012 WL 424878 (E.D. Mich. Feb. 9, 2012) .............................26 Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013) ..................................................................27, 28, 29 Davis v. Landscape Forms, Inc., 640 F. App’x 445 (6th Cir. 2016) .................................................................17, 18 Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985)..............................................................................................9 Debro v. French, No. 15-14225, 2017 WL 927622 (E.D. Mich. Feb. 16, 2017) ...........................13 Dedivanaj v. DaimlerChrysler Corp., No. 266769, 2007 WL 1791709 (Mich. Ct. App. June 21, 2007)......................19 Direct TV, Inc. v. Imburgia, 136 S. Ct. 463 (2015)..........................................................................................14 Dukes v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115 (N.D. Cal. 2013)..............................................................30 Dunlap v. Tenn. Valley Auth., 519 F.3d 626 (6th Cir. 2008) ..............................................................................27 EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000) ..............................................................27, 28, 33 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)............................................................................................11 Flatt v. Elec. Research Mfg. Corp., 103 F.3d 129 (6th Cir. 1996) ..............................................................................32

iv

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Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)............................................................................................37 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)..............................................................................................14 Grant v. Metro Gov’t of Nashville and Davidson Cnty, 446 F. App’x 737 (6th Cir. 2011) ...........................................................27, 28, 29 Harrison v. Olde Fin. Corp., 572 N.W.2d 679 (Mich. Ct. App. 1997).............................................................28 Harrison v. Progressive Corp., No. 1:12 CV 625, 2012 WL 4461503 (N.D. Ohio Sept. 25, 2012)....................25 Howard v. City of Southfield, No. 95-1014, 1996 WL 518062, 97 F.3d 1452 (6th Cir. Sept. 11, 1996) ...................................................................................................................26 Huffman v. Hilltop Cos., LLC, 747 F.3d 391 (6th Cir. 2014) ..............................................................................15 Hutchinson v. Earl Scheib, Inc., No. 07-10595, 2007 WL 3053646 (E.D. Mich. Oct. 18, 2007) .........................12 Johnson v. Metro. Gov. of Nashville, 502 F. App’x 523 (6th Cir. 2012) .......................................................................31 Krusinski v. DaimlerChrysler Corp., No. 239873, 2004 WL 315171 (Mich. Ct. App. Feb. 19, 2004) ..................10, 19 Marquis v. Tecumseh Prods. Co., 206 F.R.D. 132 (E.D. Mich. 2002) .........................................................23, 24, 25 McGill v. Meijer, Inc., No. 1:10-CV-1055, 2011 WL 1166895 (W.D. Mich. March 28, 2011) .......................................................................................................11, 12, 13 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)................................................................................................12 Nichols v. Muskingum Coll., 318 F.3d 674 (6th Cir. 2003) ..............................................................................23

v

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Orta v. DaimlerChrysler, No. 02-0018, Macomb County Circuit Court, July 15, 2002 Order...................10 Parrish v. Ford Motor Co., 909 F.2d 1484, 1990 WL 109188 (6th Cir. 1990)..............................................23 Pellow v. Daimler Chrysler Servs. N.A., LLC, No. 05-73815, 2006 WL 2540947 (E.D. Mich. Aug. 31, 2006) ........................10 Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) ..............................................................................36 Potts v. United Parcel Serv., Inc., No. 07 C 3949, 2008 WL 3884370 (N.D. Ill. May 9, 2008) ..............................35 Reed Elsevier, Inc. v. Crockett, 734 F.3d 594 (6th Cir. 2013) ..............................................................................15 Richardson v. Universal Tech. Inst. of Ariz., Inc., No. 1:06-CV-858, 2007 WL 1343672 (W.D. Mich. May 8, 2007)....................12 Rory v. Cont’l Ins. Co., 703 N.W.2d 23 (Mich. 2005)..................................................................18, 19, 20 Schilling v. Kenton Cnty., No. 10-143-DLB, 2011 WL 293759 (E.D. Ky. Jan. 27, 2011) ....................36, 38 Singal v. Gen. Motors Corp., 447 N.W.2d 152 (1989) ......................................................................................31 Smith v. BT Conferencing, Inc., No. 3:13-cv-160, 2013 WL 5937313 (S.D. Ohio Nov. 5, 2013)........................15 Smith v. City of Jackson, 544 U.S. 228 (2005)............................................................................................27 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)........................................................................................33 Steward v. New Chrysler, 415 F. App’x 632 (6th Cir. 2011) .................................................................18, 19

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Stout v. J.D. Byrider, 228 F. 3d 709 (6th Cir. 2000) ...................................................................9, 11, 13 Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015)................................................................................28 Thurman v. DaimerChrysler, Inc., 397 F.3d 352 (6th Cir. 2004) ........................................................................18, 19 Underwood v. Daimler Chrysler Corp., No. 240208, 2002 WL 31953849 (Mich. Ct. App. Dec. 13, 2002)....................19 Waller v. Daimler Chrysler Corp., 391 F. Supp. 2d 594 (E.D. Mich. 2005) .......................................................10, 11 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)............................................................................2, 37, 38, 39 Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989)......................................................................................27, 28 Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988)............................................................................................27 White v. Am. Axle & Manuf., Inc., No. 05-CV-72741-DT, 2006 WL 335710 (E.D. Mich. Feb. 14, 2006) ...................................................................................................................30 Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991) ..............................................................................12 Yeargin v. Chrysler Grp., LLC, No. 12-CV-10355, 2013 WL 593474 (E.D. Mich. Feb. 15, 2013) ....................19 Younis v. Pinnacle Airlines, Inc., 610 F.3d 359 (6th Cir. 2010) ..............................................................................23 Zawada v. Uber Tech., Inc., No. 16-CV-11334, 2016 WL 7439198 (E.D. Mich. Dec. 27, 2016)..................15 Statutes/Rules 9 U.S.C. § 2................................................................................................................9

vii

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9 U.S.C. ยง 3..............................................................................................................15 9 U.S.C. ยง 4..........................................................................................................9, 14 42 U.S.C. ยง 1981................................................................................................18, 26 42 U.S.C. ยง2000e-2(k)(1)(B)(i) ...............................................................................29 42 U.S.C. ยง 2000e-5(e) ............................................................................................23 Fed. R. Civ. P. 8(a)(2)........................................................................................21, 22 Fed. R. Civ. P. 12(b)(6)............................................................................................36 Fed. R. Civ. P. 12(f) .................................................................................................36 Fed. R. Civ. P. 23 ..............................................................................................passim Fed. R. Civ. P. 23(a).................................................................................................36 Fed. R. Civ. P. 23(a)(1)............................................................................................36 Fed. R. Civ. P. 23(a)(2)............................................................................................36 Fed. R. Civ. P. 23(a)(3)............................................................................................36 Fed. R. Civ. P. 23(a)(4)............................................................................................38 Fed. R. Civ. P. 23(b)(2)............................................................................................39 Fed. R. Civ. P. 23(c)(1)(A) ......................................................................................35 Fed. R. Civ. P. 23(d)(1)(D) ......................................................................................35

viii

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STATEMENT OF ISSUES PRESENTED 1.

Whether this Court should entirely dismiss Plaintiffs’ individual and

class allegations in the Second Amended Complaint (Dkt. 8) (“Complaint”) (Counts I - IX), based on the following multiple and independent grounds: A.

All Plaintiffs entered into a written and binding arbitration agreement, which expressly covers allegations of discrimination and retaliation and prohibits or does not reference class action claims, thus their claims (Counts I-IX) should be compelled to individual binding arbitration;

B.

The claims of six of the eight Plaintiffs are untimely because they were not asserted within the contractually agreed upon limitation period of six months (or 180 days);

C.

Six of the eight Plaintiffs fail to assert any facts necessary to support a claim of individual, let alone class, discrimination, requiring dismissal of all claims (Counts I-III) respecting these Plaintiffs;

D.

All of Plaintiffs’ Title VII claims (Count I and portions or all of Counts IV, VI, and VII) are time barred because Plaintiffs failed to exhaust their administrative remedies;

E.

All of Plaintiffs’ disparate impact claims (Counts I and III, and

ix

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Count II to the extent it seeks relief based upon disparate impact) fail because the Complaint does not identify a specific facially neutral policy, does not allege a causal nexus between any of Defendant’s practices and alleged race discrimination, and alleges intentional discrimination; and F.

All Plaintiffs lack standing to assert class claims and fail to plead the requisite elements of Fed. R. Civ. P. 23.

x

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STATEMENT OF CONTROLLING OR MOST APPROPRIATE AUTHORITY The controlling or most appropriate authority for the relief sought in this Motion includes:  Federal Arbitration Act, 9 U.S.C. §§ 1-4 et seq.  AT&T Mobility LLC v. Concepcion, 533 U.S. 333 (2011)  Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013)  Pellow v. Daimler Chrysler Sers. N.A., LLC, No. 05-73815, 2006 WL 2540947 (E.D. Mich. Aug. 31, 2006)  Waller v. Daimler Chrysler Corp., 391 F. Supp. 2d 594 (E.D. Mich. 2005)  Rory v. Cont’l Ins. Co., 703 N.W.2d 23 (Mich. 2005)  Thurman v. DaimerChrysler, Inc., 397 F.3d 352 (6th Cir. 2004)  Steward v. New Chrysler, 415 F. App’x 632 (6th Cir. 2011)  Ashcroft v. Iqbal, 556 U.S. 662 (2009)  Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)  Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013)  Federal Rule of Civil Procedure 23  Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)

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PRELIMINARY STATEMENT Defendant FCA US LLC1 respectfully submits this memorandum in support of its motion to dismiss Plaintiffs’ Second Amended Complaint, Dkt. 8 (“Complaint”).

Despite the fact that Plaintiffs2 have amended their Complaint twice, the Complaint is strikingly defective on a number of different and independent grounds, both procedurally and substantively.

As described below, there are

reasons specific to each of the eight named Plaintiffs as to why their claims must be dismissed. Moreover, as a fundamental matter, the underlying theory of the Complaint is defective. Generally, Plaintiffs purport to challenge on a “disparate impact” theory the Company’s Performance and Leadership Management (“PLM”)

1

Defendant FCA US LLC (“FCA US”) was previously named Chrysler Group LLC. See United States Securities and Exchange Commission, Form 8-K, FCA US LLC (filing date 2014-12-16). On June 10, 2009, Chrysler Group LLC, a newly-formed limited liability company, purchased certain assets of Chrysler LLC (subsequently known as Old Carco LLC) and its 24 affiliated debtors, which on April 30, 2009 had filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. See Master Transaction Agreement dated April 30, 2009.

Chrysler LLC was previously known as DaimlerChrysler Company LLC, which was previously DaimlerChrysler Corporation, which was previously known as Chrysler Corporation, and shall be referred to herein, collectively, as “FCA US” or the “Company.”

2 Plaintiffs Marlin Williams (“M. Williams”), Pamela Williams Carthens (“Carthens”), Jerome Thompson, Ph.D. (“Thompson”), Brenda DeForrest (“DeForrest”), Leven Weiss, J.D. (“Weiss”), Michael D. Brown, J.D. (“Brown”), Cora Williams (“C. Williams”), and Anthony Hill (“Hill”), shall be referred to herein, collectively, as “Plaintiffs.”

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process.

Pg ID 192

Plaintiffs, nevertheless, acknowledge in their own pleading that this

process includes multiple components, including what the Complaint calls a “subjective calibration process.” Compl. ¶¶ 57, 74. Dukes v. Walmart, 564 U.S. 338 (2011) precludes plaintiffs from creating class claims out of the subjective judgments of different managers in different locations about different employees.

Accordingly, Plaintiffs’ Complaint fails to provide the required “glue” binding different individuals’ claims into a legitimate class claim. Id. at 338.

As detailed below, the Complaint should be dismissed for numerous independent reasons:  All of the Plaintiffs are parties to arbitration commitments and thus their claims in Counts I-IX should be dismissed and they should be compelled to arbitrate their claims on an individual basis;  Six of the eight Plaintiffs failed to assert their claims within a limitations period they agreed to at the time they joined FCA US and which has been explicitly and repeatedly upheld by the courts in this Circuit;  Six of the eight Plaintiffs fail to state any claim of unlawful discrimination as to themselves and thus have no claim in Counts I-III here;  All of Plaintiffs’ Title VII claims (Count I, and portions or all of Counts IV, VI, and VII) are barred for failure to exhaust administrative remedies;  All of Plaintiffs’ disparate impact claims (Counts I and III, and Count II to the extent it can be interpreted as including such a claim) fail because they do not identify a specific facially neutral policy, do not allege a causal nexus between any of Defendant’s practices and alleged race discrimination, and rely solely on allegations of intentional discrimination; 2

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 Plaintiffs fail to articulate any injury representative of the putative class and, thus, have no standing to pursue their class claims; and  Plaintiffs fail to allege the prerequisites of Fed. R. Civ. P. 23.

For ease of reference, the below chart identifies which of the eight named Plaintiffs’ claims falls within each of the procedural and substantive failures of the Complaint: SUMMARY OF COVERAGE OF DEFENDANT’S ARGUMENTS IN MOTION TO DISMISS PLAINTIFFS’ DEFECTIVE CLAIMS

I.

PLAINTIFFS ARE CONTRACTUALLY BOUND TO ARBITRATE THEIR CLAIMS ON AN INDIVIDUAL BASIS.

As detailed below, Plaintiffs M. Williams, C. Williams, Brown, DeForrest, Hill, and Thompson (“EDRP Plaintiffs”) all expressly agreed in writing to be bound by the Company’s Employee Dispute Resolution Program (“EDRP”) as a 3

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condition of their employment. See D. Williams Decl., ¶¶ 6-17.3 Additionally, Plaintiffs Weiss and Carthens (“1995 EDRP Plaintiffs”), who began employment before adoption of the EDRP, agreed to be bound by the EDRP by continuing their employment after receiving notice of the EDRP’s implementation on June 1, 1995 (the “1995 EDRP”). Id. at ¶¶ 18-21; Hortop Decl., ¶¶ 4-7.4 The EDRP explicitly states that employment discrimination and retaliation claims, such as those in Plaintiffs’ Complaint, must be brought in arbitration. Id. at Ex. 3-A; D. Williams Decl., Ex. 1-I. Accordingly, all Plaintiffs should be compelled to pursue their claims contained in Counts I-IX in arbitration, not this court, on an individual basis and not as a class.

A.

Applicable Arbitration Commitments.

The Company’s EDRP provides for arbitration on an individual basis of “Covered Disputes” brought by employees who are parties to the program. See D. Williams Decl., Ex. 1-I at p. 1. The definition of Covered Disputes explicitly includes claims of “discrimination based upon… race” and “[r]etaliation claims for legally protected activity” (i.e., “Covered Disputes”), thus encompassing all of the Plaintiffs’ claims. Id. It further expressly provides that any claims are to be 3

The Declaration of Dorothy M. Williams, sworn to on May 15, 2017, and submitted herewith, shall be referenced herein as “D. Williams Decl., [Exhibit No., Paragraph No.].”

4 The Declaration of Kenneth C. Hortop, sworn to on May 12, 2017, and submitted herewith, shall be referenced herein as “Hortop Decl., [Exhibit No., Paragraph No.].”

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brought in arbitration and on an individual basis:

EXCLUSIVE REMEDY AND INDIVIDUAL NATURE OF COVERED CLAIMS The EDRP provides the exclusive, final and binding method to resolve Covered Disputes. The scope of this EDRP extends to all Covered Disputes whether based on federal, state or local law.

Covered Disputes under the EDRP must be brought on an individual basis. Neither [the Company] nor any employee may submit a class, collective, or representative action for resolution under the EDRP. To the maximum extent permitted by law, and except where expressly prohibited by law, arbitration on an individual basis pursuant to the EDRP is the exclusive remedy for any Covered Dispute that may be brought on a class, collective, or representative action basis. Accordingly, an employee may not participate as a class or collective action representative or as a member of any class, collective, or representative action, and will not be entitled to recovery from a class, collective, or representative action in any forum.

Id. at Ex. 1-I, p. 3 (emphasis added).

Additionally, the “EDRP Arbitration Procedure” (attached to the EDRP) provides: the “EDRP and proceedings under it will be governed by the Federal Arbitration Act and any applicable state arbitration statute.” Id. at Ex. 1-I, p. 10.

B.

EDRP Plaintiffs Agreed To Individual Arbitration.

On November 3, 2014, M. Williams, who has a Master’s Degree and a certification in employee relations law (Compl. ¶ 5), submitted an online application for employment with FCA US. See D. Williams Decl., ¶ 6. As part of her application, M. Williams signed an acknowledgment that included an

5

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electronic link to the EDRP. Id. at Ex. 1-A. In the acknowledgment form, M. Williams agreed that she had received and reviewed the EDRP and agreed to be bound by and comply with the EDRP. Id. M. Williams began working at the Company on January 5, 2015 and she remained employed until January 3, 2017.

Id. at ¶ 7.

In October 2011, C. Williams, who has a degree in business logistics (Compl. ¶ 17), submitted an online application for employment with the Company.

See D. Williams Decl., ¶ 8.

As part of that application, she signed an

acknowledgment that she agreed to be bound by and comply with the EDRP. Id. at Ex. 1-B. C. Williams began working for the Company on January 17, 2012 and she remained employed until December 2, 2016. Id. at ¶ 9.

On April 22, 2010, Brown, an attorney (Compl. ¶ 15), submitted an employment application. See D. Williams Decl., ¶ 10. As part of his application, Brown signed an acknowledgment that he agreed to be bound by and comply with the EDRP. Id. at Ex. 1-C. On June 1, 2010, Brown began working for the Company and remained employed until May 18, 2015. Id. at ¶ 11.

On October 4, 2002, DeForrest, who has a B.S. in Biological Psychology and an M.B.A. (Compl. ¶ 11), submitted an application for employment with the Company. See D. Williams Decl., Ex. 1-D. In that employment application, she expressly agreed to comply with the EDRP. Id. On October 21, 2002, DeForrest 6

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began working for the Company and is still employed by the Company. Id. at ¶ 13.

On January 7, 2000, Hill, who has a degree in business management and an M.B.A. (Compl. ¶ 19), applied for employment with the Company.

See D.

Williams Decl., Ex. 1-E. In that employment application, he expressly agreed to comply with the EDRP. Id. On February 14, 2000, Hill began working for the Company. Id. at ¶ 15. Hill is still employed by the Company. Id. On October 31, 1996, Thompson, who has a Ph.D. (Compl. ¶ 9), applied for employment with the Company. See D. Williams Decl., Ex. 1-F. In Thompson’s employment application, he agreed that if he was employed he would comply with the EDRP. Id. On or about November 13, 1996, the Company offered Thompson a position, he began working on November 19, 1996, and he is still employed by the Company. Id. at ¶ 17.

C.

1995 EDRP Plaintiffs Agreed To Individual Arbitration.

Weiss, an attorney (Compl. ¶¶ 12, 13), applied for employment with the Company on November 20, 1985, and Carthens, who has a B.S. in Electrical Engineering and an M.B.A. (Id. at ¶ 7), applied for employment on March 25, 1986. See D. Williams Decl., ¶¶ 18, 20. (Weiss and Carthens are collectively referred to as the “1995 EDRP Plaintiffs”). In their employment applications, both of them agreed that in the event they were employed, they would comply with all

7

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of the Company’s orders, rules, and regulations. Id. at Exs. 1-G, 1-H. Both Weiss and Carthens were offered employment, which they accepted. Id. at ¶¶ 19, 21.

On May 15, 1995, all non-bargaining unit employees, including Weiss and Carthens (D. Williams Decl., ¶¶ 19, 21), were notified that, effective June 1, 1995, the Company was introducing the EDRP and that the 1995 EDRP “govern(s) all future legal disputes between you and Chrysler,” and provides for “final and binding arbitration” of covered employment-related disputes. Hortop Decl., ¶¶ 4, 6-7, Exs. 3-B, 3-C. The 1995 EDRP similarly provides that it is the “exclusive, final and binding method” to resolve “all legal issues relating to claims of… [d]emotion (a Salary Band reduction),” among other things, and also advises employees that it “extends to all eligible disputes whether based on federal, state or local law including… discrimination and retaliation claims.” Id. at Ex. 3-A, pp.

1, 3, 6-7 (emphasis added). Weiss and Carthens remained employed by the Company after receiving notice of the implementation of the EDRP, until they each left the Company respectively on April 30, 2016, and January 31, 2017. See D. Williams Decl., ¶¶ 19-21.

D.

The EDRP Is Fully Enforceable As To All Plaintiffs.

As the Supreme Court affirmed in AT&T Mobility, LLC v. Concepcion, 563 U.S. 333 (2011), the Federal Arbitration Act (“FAA”) declares a liberal policy favoring the enforcement of arbitration agreements.

8

The FAA provides that

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written agreements to arbitrate controversies in any “contract evidencing a transaction involving commerce” shall be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 4 of the FAA requires a federal court to order parties to proceed to arbitration if there has been a failure, neglect, or refusal of any party to honor an agreement to arbitrate.

Id. at § 4.

These provisions are

mandatory: “By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985).

The Sixth Circuit utilizes a four-part test for determining whether arbitration should be compelled under the FAA: (1) whether the parties agreed to arbitrate; (2) whether the scope of the agreement covers the dispute; (3) if federal statutory claims are asserted, whether Congress intended those claims to be non-arbitrable; and, (4) if only some of the claims are subject to arbitration, whether to stay the balance of the proceedings pending arbitration. See Stout v. J.D. Byrider, 228 F. 3d 709, 714 (6th Cir. 2000). The first three parts of this test are satisfied here, and the fourth part is inapplicable, because all of Plaintiffs’ claims are subject to arbitration.

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1.

Pg ID 200

The EDRP Is Fully Enforceable As To The EDRP Plaintiffs.

Judges of this Court have already held on two separate occasions that the EDRP must be enforced under the FAA. See Pellow v. Daimler Chrysler Servs.

N.A., LLC, No. 05-73815, 2006 WL 2540947 (E.D. Mich. Aug. 31, 2006);5 Waller v. Daimler Chrysler Corp., 391 F. Supp. 2d 594 (E.D. Mich. 2005).6 In Pellow, the Court held that “Defendant’s review of Plaintiff’s application constituted valid consideration for Plaintiff’s promise to arbitrate claims.” Pellow, 2006 WL 2540947, at *5-6 (citing cases); accord Krusinski v. DaimlerChrysler Corp., No. 239873, 2004 WL 315171, at *3 (Mich. Ct. App. Feb. 19, 2004) (“defendant’s agreement to review plaintiff’s employment application… constituted consideration to support the contract.”). The Pellow Court held that the employee’s acceptance and agreement that he will “be governed by and must comply with Chrysler’s [EDRP], which requires many employment-related claims to be resolved exclusively through arbitration,” like Plaintiffs’ employment applications here, created a binding contract. Pellow, 2006 WL 2540947, at *7 (internal quotation omitted).

Similarly, in Waller, the Court considered the Company’s employment 5

All unpublished cases cited are attached in alphabetical order by case name at Exhibit 4. See Index of Exhibits.

6 Judge Donofrio of the Macomb County Circuit Court similarly held that the EDRP was enforceable in Orta v. DaimlerChrysler, Case No. 02-0018, Macomb County Circuit Court, July 15, 2002 Order.

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application which, similar to the versions signed by Plaintiffs, provided: “I agree that I will be governed by and must comply with [the Company’s EDRP], which requires many employment-related claims to be resolved exclusively through arbitration.” 391 F. Supp. 2d at 596. The Waller Court held that “by signing the employment application, Plaintiff unambiguously agreed to be bound by the EDRP,” and was required to arbitrate his disability discrimination claim. Id. at 602.7 a.

A Valid Contract To Arbitrate Exists.

The first part of the Stout test is clearly satisfied here. The EDRP Plaintiffs entered into valid arbitration agreements when they signed their employment applications which expressly provided that they agreed to be bound by the EDRP. b.

The EDRP Plaintiffs’ Claims Fall Within The Scope Of The Arbitration Provision.

As the Supreme Court held in EEOC v. Waffle House, Inc., “[a]bsent some ambiguity in the agreement ... it is the language of the contract that defines the

7

The EDRP’s provision confirming that it is “governed by the Federal Arbitration Act,” see D. Williams Decl., Ex. 1-I, p. 10, by itself is sufficient to bring it within the purview of the FAA. See McGill v. Meijer, Inc., No. 1:10-CV-1055, 2011 WL 1166895, at *2, n.1 (W.D. Mich. March 28, 2011) (arbitration program enforceable under FAA because it “contains an express provision that it [is] enforceable under the FAA.”). It is also “well-settled that the FAA applies to employment contracts except for those of transportation workers.” Id.; accord Circuit City Stores, Inc. v.

Adams, 532 U.S. 105 (2001) (arbitration provision in employment application is covered under the FAA.).

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scope of disputes subject to arbitration.” 534 U.S. 279, 289 (2002). “[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 24-25 (1983).

Here, the EDRP Plaintiffs’ (who signed applications agreeing to be bound by the EDRP) claims fall squarely within the EDRP, which lists “examples of Covered Disputes,” including “discrimination based upon … race” and “[r]etaliation claims for legally protected activity.” D. Williams Decl., Ex. 1-I, p.

1. The EDRP further provides that the “scope of this EDRP extends to all Covered Disputes whether based on federal, state, or local law.” Id. at p. 3. The race discrimination and retaliation claims thus indisputably fall within the scope of the EDRP. c.

EDRP Plaintiffs’ Federal Statutory Claims Are Arbitrable As A Matter Of Law.

Finally, this Circuit has repeatedly enforced agreements to arbitrate federal statutory discrimination claims, including claims under Title VII and Section 1981.

See Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 312 (6th Cir. 1991) (Title VII claims are arbitrable); McGill, 2011 WL 1166895, at *4 (“It is well settled within the Sixth Circuit that Congress did not intend to exclude Title VII claims from arbitration.”); Hutchinson v. Earl Scheib, Inc., No. 07-10595, 2007 WL 3053646, at *1 (E.D. Mich. Oct. 18, 2007); Richardson v. Universal Tech. Inst. of 12

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Ariz., Inc., No. 1:06-CV-858, 2007 WL 1343672, at *3 (W.D. Mich. May 8, 2007) (“claims under §1981… are arbitrable”).

Accordingly, the third and final

applicable part of the Stout test is also met here as a matter of law, and arbitration should be compelled accordingly.

2.

The EDRP Is Fully Enforceable As To The 1995 EDRP Plaintiffs As Well.

The 1995 EDRP Plaintiffs similarly entered into valid and binding agreements to arbitrate. After receiving notice of the EDRP’s implementation in 1995, Weiss and Carthens confirmed their assent to it as a matter of fact and law, by continuing to work for the Company. Under Michigan law, this created a binding agreement to arbitrate. See Debro v. French, No. 15-14225, 2017 WL 927622, at *3 (E.D. Mich. Feb. 16, 2017) (“An offer to arbitrate disputes may be accepted through continued employment.”); accord McGill, 2011 WL 1166895, at *4 (employee who agreed to abide by all of employer’s policies and procedures was bound by employer’s arbitration program).

Moreover, for the same reasons stated above, the 1995 EDRP Plaintiffs’ agreement also fulfills the Sixth Circuit’s four-part test. Namely: (1) a valid contract exists; (2) the generalized allegations of discrimination and retaliation set forth in the Complaint are explicitly included within the terms of the 1995 EDRP as to Weiss and Carthens; and (3) the federal statutory claims are arbitrable as a matter of law.

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E.

Pg ID 204

The Court Should Require Plaintiffs To Proceed with Arbitration On An Individual Basis.

The “overarching purpose” of the FAA is “to ensure the enforcement of arbitration agreements according to their terms, so as to facilitate streamlined proceedings.” Concepcion, 563 U.S. at 344. As such, the FAA provides that a party may obtain an order compelling arbitration “in the manner provided for in [the parties’] agreement.” 9 U.S.C. § 4. Here, the “manner provided” is on an individual basis. See D. Williams Decl., Ex. 1-I, pp. 3, 10.

In Concepcion, the Supreme Court upheld the enforceability of class waivers in arbitration agreements, reaffirming the bedrock principle that arbitration agreements must be enforced as written. Concepcion, 563 U.S. at 352; Direct TV, Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015) (“The [FAA] is a law of the United States, and Concepcion is an authoritative interpretation of that Act.”).

In American Express Co. v. Italian Colors Restaurant, the Supreme Court reiterated that courts “must rigorously enforce arbitration agreements according to their terms, including terms that specify with whom [the parties] choose to arbitrate their disputes.” 133 S. Ct. 2304, 2309 (2013) (internal quotations and citations omitted). The Supreme Court cited its prior decision in Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), a case brought under the Age Discrimination in Employment Act, stating: “In Gilmer … we had no qualms in enforcing a class waiver in an arbitration agreement….” Id. at 2311.

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Likewise, courts in this Circuit, including this Court, have upheld class action waivers. See Zawada v. Uber Tech., Inc., No. 16-CV-11334, 2016 WL 7439198 (E.D. Mich. Dec. 27, 2016) (Michelson, L.); Smith v. BT Conferencing, Inc., No. 3:13-cv-160, 2013 WL 5937313 (S.D. Ohio Nov. 5, 2013). Consistent with these precedents, FCA US is entitled to an order compelling EDRP Plaintiffs to submit their individual claims—and only their individual claims—to arbitration, and dismissing EDRP Plaintiffs from this case. See Arnold v. Arnold Corp., 920 F.2d 1269, 1276 (6th Cir. 1990) (permitting dismissal of case after compelling arbitration).8 The 1995 EDRP Plaintiffs similarly are required to proceed with their arbitrations on an individual basis. Under Sixth Circuit law, class arbitration is not authorized if the arbitration agreement is silent as to the availability of classwide arbitration. See Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013) (“The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it.”); accord AlixPartners, LLP v. Brewington, 836 F.3d 543, 553 (6th Cir. 2016); Huffman v.

Hilltop Cos., LLC, 747 F.3d 391 (6th Cir. 2014).

8

To the extent that the Court determines dismissal is inappropriate, it should instead stay the proceedings pending arbitration. See 9 U.S.C. § 3.

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II.

Pg ID 206

THE COURT SHOULD ALSO DISMISS SIX OF THE PLAINTIFFS’ CLAIMS IN THEIR ENTIRETY AS BEING TIME BARRED.

In addition to granting Defendant’s Motion to Compel Arbitration, Counts IIII of the Complaint must be dismissed as to six of the Plaintiffs because they failed to file any claim within six months (or 180 days), as agreed upon as a condition of their employment. Moreover, M. Williams’ and C. Williams’ individual claims for discrimination and retaliation in Counts IV-IX must also be dismissed to the extent they rely on events which occurred outside the contractual limitation provision in their employment applications.

A.

Time Barred Plaintiffs Agreed That They Must Bring Any Employment-Related Claims Within 6 Months (or 180 Days).

In their applications for employment, Plaintiffs DeForrest, Thompson, Hill, M. Williams, C. Williams, and Brown (the “Time Barred Plaintiffs”) agreed that they would bring any employment-related claims within either six (6) months or one hundred and eighty (180) days.

In their employment applications, Plaintiffs DeForrest, Thompson, and Hill agreed as follows: In consideration of [the Company’s] review of my application, I agree that any claim or lawsuit arising out of my employment with, or my application for employment with, [the Company] or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit.

While I understand that the statute of limitations for claims arising out 16

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of an employment action may be longer than six (6) months, I agree to be bound by the six (6) month period of limitations [set forth herein,] and I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY. D. Williams Decl., Exs. 1-D, 1-E, 1-F. This clause was preceded by the bold and capitalized statement: “READ CAREFULLY BEFORE SIGNING.” Id. This clause was also preceded by the statement: “I have read and do understand the statements contained [in this application]….” Id. Similarly, in their employment applications, Plaintiffs M. Williams, C. Williams, and Brown agreed: I agree that any lawsuit arising out of my employment with… [the Company] or any of its subsidiaries and affiliates must be filed no more than 180 days after the date of the employment action that is the subject of the lawsuit. While I understand that the statute of limitations for claims arising out of an employment action may be longer than 180 days, I agree to be bound by the 180 day period of limitations and I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY. Id. at Exs. 1-A, 1-B, 1-C. This clause was preceded by the statement: “I have read and understand the statements contained in this application….” Id. B.

Michigan Law Requires Courts To Enforce Contractually Shortened Limitations Periods.

State contract law governs the enforceability of contracts. See Davis v.

Landscape Forms, Inc., 640 F. App’x 445 (6th Cir. 2016). In Michigan, “an unambiguous contractual provision providing for a shortened period of limitations is to be enforced as written unless the provision would violate law or public 17

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policy.” Rory v. Cont’l Ins. Co., 703 N.W.2d 23, 32 (Mich. 2005). As the Sixth Circuit recently observed, contractually shortened limitations periods in an employment application are consistent with and fully enforceable as a matter of Michigan law and public policy:

“Michigan law requires courts to enforce

contractually-shortened limitations periods like the one in [Plaintiffs’] employment application.”

Davis, 640 F. App’x at 450 (enforcing 180-day contractual

limitations period in employment application, and finding 42 U.S.C. § 1981 and ELCRA claims time barred).

In Thurman v. DaimerChrysler, Inc., 397 F.3d 352 (6th Cir. 2004), the Sixth Circuit considered and enforced an earlier version of the contractual limitations provision in the Company’s employment application, which provided: I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

Id. at 354. The Sixth Circuit held that this “contractual language is clear and unambiguous” and enforceable, and accordingly dismissed the employee’s Title VII, ELCRA and 42 U.S.C. § 1981 claims. Id. at 358-59.

After Thurman, the Sixth Circuit yet again considered the enforceability of this same language in Steward v. New Chrysler, 415 F. App’x 632 (6th Cir. 2011).

In Steward, the Sixth Circuit again found that the six-month contractual limitations 18

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provision was enforceable, and that the employee’s race discrimination claims based on incidents that occurred more than six months before she filed suit were time barred. Id. at 638-39.

In fact, every Michigan state and federal court that has considered the shortened contractual limitation provision contained in the Company’s employment application has held that it is enforceable. See e.g., Thurman, 397 F.3d 352; Steward, 415 F. App’x 632; Yeargin v. Chrysler Grp., LLC, No. 12-CV10355, 2013 WL 593474 (E.D. Mich. Feb. 15, 2013) (holding same six-month contractual limitation provision signed by Plaintiffs DeForrest, Thompson, and Hill is: (1) “clear and unambiguous”; (2) not void as a matter of public policy; and (3) barred employee’s untimely ELCRA claims); Dedivanaj v. DaimlerChrysler Corp., No. 266769, 2007 WL 1791709, at *1 (Mich. Ct. App. June 21, 2007) (sixmonth limitation period is valid, enforceable, and barred sexual harassment and race association discrimination claims); Clark v. DaimlerChrysler Corp., 706 N.W.2d 471 (Mich. Ct. App. 2005); Costa v. Daimler Chrysler Corp., No. 244743, 2004 WL 1224915 (Mich. Ct. App. June 3, 2004); Krusinski, 2004 WL 315171; Underwood v. Daimler Chrysler Corp., No. 240208, 2002 WL 31953849 (Mich.

Ct. App. Dec. 13, 2002).9

9

In 2005, the Michigan Supreme Court adopted a more lenient standard in interpreting contractual limitations provisions. See Rory, 703 N.W.2d at 31.

Courts in Michigan that have considered this very limitation provision both before 19

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C.

Pg ID 210

The Time Barred Plaintiffs’ Class Claims Fail.

As the above authority makes clear, here, the Time Barred Plaintiffs’ class claims in Counts I-III are indisputably time barred by the 6 month (or 180 day) contractual limitation provision that they agreed to in their employment applications.

As noted above, M. Williams filed the Complaint on January 11, 2017. See Dkt. 1. Thus, even if the contractual limitations period for M. Williams and all other Time Barred Plaintiffs is measured from this date (and not the later date(s) the Complaint was amended to add other Plaintiffs and causes of action), which Defendant denies, any claim arising out of an employment action which occurred prior to July 11, 2016 is barred as to the Time Barred Plaintiffs. In Counts I-III, the Time Barred Plaintiffs bring claims on behalf of a class of certain African American employees who were “subjected to the Evaluation Process and received PLM ratings of 5 or below for the years 2014 and 2015 only.” Compl. ¶ 73 (emphasis added). Plaintiffs, however, were aware of their 2015 PLM ratings (and, a fortiori, their rating for 2014) long before July 11, 2016, the contractual cut-off date. For example, in her Charges of Discrimination, C. Williams stated that she received her “[allegedly] low performance rating” for 2015 on or about March 11, 2016, four months before July 11, 2016. See Watson Decl., Exs. 2-A,

and after Rory have enforced it.

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2-B.10 Thus, because the Complaint limits the Plaintiffs’ claims to PLM ratings received in 2014 and 2015, and because the Time Barred Plaintiffs received these ratings prior to July 11, 2016, their claims in Counts I-III are time barred.11 III.

PLAINTIFFS CARTHENS, THOMPSON, DEFORREST, WEISS, BROWN AND HILL FAIL TO STATE A CLAIM OF DISCRIMINATION.

In addition to the reasons set forth above, all claims asserted by Plaintiffs Carthens, Thompson, DeForrest, Weiss, Brown and Hill must also be dismissed because they fail to assert with any requisite specificity that they were discriminated against in any way or are entitled to any relief whatsoever. Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (emphasis added). In 10

The Declaration of Jerome R. Watson, sworn to on May 15, 2017, and submitted herewith, shall be referred to as the “Watson Decl., [Exhibit No., Paragraph No.].”

This Court may properly consider the facts alleged in C. Williams’ and M. Williams’ Charges of Discrimination filed with the EEOC in connection with Defendant’s motion to dismiss. See Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008); Amini v. Oberlin Coll., 259 F.3d 493, 502-03 (6th Cir. 2001).

11 As for Plaintiffs M. Williams’ and C. Williams’ individual claims, to the extent they complain of employment actions outside of the contractual limitation period, their claims are time barred. For example, Counts IV and VI through IX were not added until the Complaint was amended for a second time on March 16, 2017. See Compl. ¶¶ 113-118, 125-161. Thus, to the extent M. Williams or C. Williams base their claims on any employment actions prior to September 16, 2016, their claims are time barred. Additionally, Count V, which alleges retaliation in violation of the ELCRA on behalf of only Plaintiff M. Williams, was first raised in the Complaint on January 11, 2017. See Dkt. 1. Thus, this claim is also time barred to the extent Plaintiff M. Williams bases this claim on any employment actions prior to July 11, 2016.

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construing this rule, the Supreme Court has explained that, to survive a motion to dismiss, a complaint must allege facts that, if true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if plaintiff alleges facts that “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. The Complaint is devoid of any substantive allegations as to Plaintiffs Carthens, Thompson, DeForrest, Weiss, Brown, and Hill, let alone allegations that could “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678.

Indeed, the only allegations in the entire Complaint even mentioning these Plaintiffs are: (1) they are African American; (2) they are or were employed by FCA US; (3) their state of residence; (4) their dates of employment with FCA US; (5) their educational degrees; and (6) their job classification while employed at FCA US. See Compl. ¶¶ 6-15, 18-19. These Plaintiffs do not allege any facts to support a claim of individual discrimination, much less class discrimination. The Complaint is thus wholly insufficient to state a claim under Fed. R. Civ. P. 8(a)(2) as to these Plaintiffs and should be dismissed as to all claims asserted.

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IV.

Pg ID 213

COUNT I MUST BE DISMISSED BECAUSE PLAINTIFFS DID NOT TIMELY EXHAUST THEIR ADMINISTRATIVE REMEDIES.

Before a plaintiff alleging discrimination under Title VII can bring suit in federal court, she must first timely file a charge of employment discrimination with the EEOC. See Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003).

An EEOC charge must be filed within 300 days after the alleged unlawful employment practice occurred. See 42 U.S.C. § 2000e-5(e). A Court may not consider an employee’s Title VII claim that was not timely filed with the EEOC. See Clemons v. Metro. Gov. of Nashville, 664 F. App’x 544, 546-47 (6th Cir. 2016). Even if the EEOC charge is timely filed, the scope of the lawsuit later filed by a plaintiff is limited to the claims asserted in the administrative charge filed with the EEOC. See Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).

Further, a Title VII class action “must be supported by at least one representative charge, timely brought by one of the named plaintiffs, which adequately identifies

the

collective, class-wide

nature

of

the

claimed

discrimination.” Marquis v. Tecumseh Prods. Co., 206 F.R.D. 132, 150 (E.D. Mich. 2002); accord Parrish v. Ford Motor Co., 909 F.2d 1484, 1990 WL 109188, at *7 (6th Cir. 1990) (“EEOC charge must at least contain an allegation of classwide discrimination” to maintain class action). In Marquis, this Court found that

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the EEOC charge in question did not alert the employer or EEOC to the alleged class-wide discrimination or provide adequate notice of the scope of the class, and that, therefore, the plaintiffs’ failure to exhaust their administrative remedies precluded them from proceeding with a class action. Id. at 155.

Here, as in Marquis, none of the Plaintiffs brought a timely EEOC charge which notified the EEOC of their class claims. Indeed, Plaintiffs Thompson, DeForrest, Weiss, Brown, and Hill never filed a charge with the EEOC whatsoever. Although M. Williams and C. Williams did file charges, neither charge is sufficient to sustain Plaintiffs’ class claims in Count I. Specifically, in Count I, Plaintiffs purport to bring this case as a class action on behalf of certain African American employees who “received PLM ratings of 5 or below for the years 2014 and 2015 only.” Compl. ¶ 73. Plaintiffs’ Complaint alleges that they received lower PLM ratings because they are African American.

Id. at ¶ 91. Yet, C. Williams’ charge does not contain any class allegations and makes no mention of her 2014 PLM rating. M. Williams’ charge also does not reference her 2014 PLM rating, nor could it as she was not employed then.

Moreover, both C. Williams’ and M. Williams’ allegations about their 2015 PLM ratings are time barred. See infra Part IV.A, B. A.

C. Williams’ Charges Do Not Mention Class Claims Or Her 2014 PLM Rating.

On June 8, 2016, C. Williams filed a Charge of Discrimination with the 24

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EEOC, assigned Charge No. 471-2016-02594, alleging race discrimination and retaliation. See Watson Decl., Ex. 2-A. On December 13, 2016, C. Williams filed a second Charge of Discrimination with the EEOC, assigned Charge No. 4712017-00655, in which she alleged that she was retaliated against for filing a charge with the EEOC, and that her employment was terminated because she is African American. Id. at Ex. 2-B. In neither charge does C. Williams complain about: (1) her PLM rating for the year 2014; or (2) class-wide discrimination. Id. at Exs. 2-A, 2-B. On February 22, 2017 and February 24, 2017, the EEOC found with respect to both of C. Williams’ charges that it was “unable to conclude that the information obtained establishes violations of the statutes,” and issued a Notice of Right to Sue. Dkt. 8-2.

Because C. Williams’ charges admittedly did not allege class-wide discrimination, her charges cannot support Plaintiffs’ class allegations.12

See

Marquis, 206 F.R.D. at 155; Harrison v. Progressive Corp., No. 1:12 CV 625, 2012 WL 4461503 (N.D. Ohio Sept. 25, 2012) (granting motion to dismiss class race discrimination claims on basis that named plaintiff failed to bring class claims in charge). Moreover, for C. Williams, the applicable 300-day period began to run on August 13, 2015 (i.e., 300 days prior to June 8, 2016). Thus, in addition to the

12

As Plaintiffs concede, C. Williams only brought charges with the EEOC “on her own behalf.” Compl. ¶ 27.

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fact that C. Williams’ charge did not reference her 2014 PLM rating, any allegations relating to ratings received for 2014 are time barred in any event.

B.

M. Williams’ 2017 EEOC Charge Does Not Raise A Timely Issue About 2014 Or 2015 PLM Ratings.

M. Williams did not file her EEOC charge until March 2, 2017. See Watson Decl., Ex. 2-C. Thus, any claims occurring more than 300 days before that date, i.e., prior to May 6, 2016, are time barred. In her charge, M. Williams claims that she began working for FCA US on January 5, 2015 and complains only about her 2015 PLM rating. Id. As set forth supra at Part II, C, Plaintiffs received their 2015 PLM ratings (and, a fortiori, their ratings for 2014) by March 2016, two months earlier. Therefore, M. Williams did not timely bring her EEOC charge, and cannot now bring these claims in Court, either individually, or on behalf of a class. See Clemons, 664 F. App’x at 546-47; Dallas v. Alcatel-Lucent USA, Inc., No. 09-14596, 2012 WL 424878 (E.D. Mich. Feb. 9, 2012).

V.

PLAINTIFFS FAIL TO ALLEGE A PLAUSIBLE DISPARATE IMPACT CLAIM IN COUNTS I AND III.13

To survive a motion to dismiss, it is “not enough to simply allege that 13

The exact nature of Plaintiffs’ 42 U.S.C. § 1981 claim in Count II is unclear. To the extent Plaintiffs purport to bring a claim for disparate impact under 42 U.S.C. § 1981, in addition to the basic pleading failures set forth herein, Count II must also be dismissed because disparate impact claims are not sustainable under 42 U.S.C. § 1981 as a matter of law. Howard v. City of Southfield, No. 95-1014, 1996 WL 518062, 97 F.3d 1452, at *3 (6th Cir. Sept. 11, 1996) (“A § 1981 claim cannot be based on a disparate impact analysis because proof of discriminatory intent is required.”).

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there is a disparate impact on workers or point to a generalized policy that leads to such an impact.” Smith v. City of Jackson, 544 U.S. 228, 241 (2005).

Plaintiffs must instead “ isolat[e] and identify the specific employment practices that are allegedly responsible for any [disparate impact].” Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656 (1989); Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988); Davis v. Cintas Corp., 717 F.3d 476, 494 (6th Cir. 2013) (plaintiffs in disparate impact cases are required “to isolate any allegedly adverse practices and to examine their individual effects…”); Grant v. Metro Gov’t of Nashville and Davidson Cnty, 446 F. App’x 737, 740 (6th Cir. 2011).

Plaintiffs must plead:

(1) a significant statistical race disparity; (2) a

specific, facially-neutral, employment practice that allegedly caused the disparity; and (3) that a causal nexus exists between the two. S e e , e . g . , EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000); Wards Cove, 490 U.S. at 655-56; Watson, 487 U.S. at 994-95; see also Dunlap v. Tenn.

Valley Auth., 519 F.3d 626, 629 (6th Cir. 2008); Davis, 717 F.3d at 494.

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Moreover, the Sixth Circuit has held that when an employment procedure consists of multiple discrete steps, a plaintiff must identify and isolate the specific practice being challenged. Davis, 717 F.3d at 496-98. Plaintiffs must also causally connect the specific facially-neutral employment practice to the identified disparity. Joe’s Stone Crab, Inc., 220 F.3d at 1276. “ A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact” and such a case should be dismissed. Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2523 (2015).

Plaintiffs fail to meet the basic requirements for a claim for relief under a disparate impact theory for Title VII or the ELCRA.14 The employment policy that

14

The primary difference between the ELCRA and Title VII with regard to disparate impact claims is that the 1991 Amendments to Title VII do not apply to the ELCRA. In Wards Cove, the Supreme Court held that to establish Title VII disparate impact, plaintiffs must identify “specific employment practice(s) that are allegedly responsible for any observed statistical disparities.” 490 U.S. at 656. In 1991, following Wards Cove, Title VII was amended to provide that a “decisionmaking process may be analyzed as one employment practice” if the plaintiff can show that its elements are so intertwined that they are “not capable of separation for analysis.” Grant, 446 F. App’x at 741. This exception does not apply under the ELCRA, which was intentionally patterned after Title VII as that statute existed in 1976, and which was not amended after Congress amended Title VII in 1991.

Harrison v. Olde Fin. Corp., 572 N.W.2d 679, 684 n.15 (Mich. Ct. App. 1997).

Accordingly, under the ELCRA, Plaintiffs must demonstrate a specific practice within the PLM system or otherwise that allegedly caused the purported disparate impact. Moreover, the exception permitted by the 1991 amendments to Title VII 28

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they challenge here is the entire allegedly “subjective” PLM process, which by their own admission is much more than a single employment practice. See, e.g., Compl. ¶¶ 46-51, 74-75, 82-83, 93-94, 104, 110.

Plaintiffs concede in their

Complaint that the PLM process consists of multiple, distinct steps including a supervisor’s assignment of an initial “PLM Rating,” which then is subject to a “calibration process” wherein unspecified “management” “subjectively rate[s]” employees to provide the given “PLM Ratings” on a scale from 1 to 9. Id. at ¶¶ 46-51, 74, 93.

Plaintiffs further claim that management involved in the

“calibration process” viewed photographs of employees as part of that process and must adhere to a “forced distribution,” which requires them to “subjectively rate a certain number…of employees at ratings either 5 or below, regardless of performance.” Id. at ¶¶ 50-51, 74, 93. Because Plaintiffs fail to identify which of these specific practices allegedly disproportionately affected some African American employees, Plaintiffs fail to state a claim for disparate impact. Grant, 446 F. App’x at 740-41 (holding the district court erred by permitting plaintiffs to challenge a promotion process as a whole); Davis, 717 F.3d at 497-98 (plaintiff’s disparate impact claims failed where she challenged the defendant’s entire hiring

does not apply to Plaintiffs’ Title VII claims here, because, far from alleging that the evaluation process is “not capable of separation for analysis,” as noted herein, Plaintiffs’ Complaint specifically alleges that there are many discrete parts of the evaluation process. See Grant, 446 F. App’x at 740-41; see also 42 U.S.C. §2000e-2(k)(1)(B)(i).

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system); White v. Am. Axle & Manuf., Inc., No. 05-CV-72741-DT, 2006 WL 335710, at *4 (E.D. Mich. Feb. 14, 2006) (granting motion to dismiss disparate impact claim where “Plaintiff has not identified any of Defendant’s employment policies that are allegedly responsible for the statistical disparities that Plaintiff has described”). In Dukes v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115 (N.D. Cal. 2013), after remand by the Supreme Court, the district court rejected a similar attack on a personnel policy. Plaintiffs there argued that “company-imposed Field Compensation Guidelines constrain[ed] pay decisions” and that, in making promotion decisions, managers used “common subjective criteria.” Id. at 1126 (internal quotation marks omitted). The district court rejected the argument that use of these criteria constituted a “specific employment practice,” ruling that plaintiffs’ “repackaged” discretion theory amounted to nothing more than “challenging Wal-Mart’s practice of delegating discretion to local managers, which the Supreme Court specifically held was not a specific employment practice supplying a common question sufficient to certify a class.” Id. at 1126-27.

Even if Plaintiffs’ Complaint could somehow be read to identify a specific, discrete employment practice, the heart of their disparate impact allegation is that the PLM process permits individual FCA US managers to intentionally discriminate and use their individual racial bias to impact PLM ratings for African American employees, which directly contravenes the very core of a disparate 30

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impact claim. The threadbare allegations of the Complaint frame the PLM process as an intentionally discriminatory policy.

Plaintiffs’ Complaint alleges:

“race…was a factor that made a difference in Defendant’s decision to evaluate [Plaintiffs]

lower

than

their

similarly

situated,

non-African

American

employees…,” and FCA US, “by its agents, representatives, and employees, were predisposed to discriminate on the basis of race and acted in accordance with that predisposition.” See Compl. ¶¶ 91-92, 130, 149 (emphasis added).15 In addition, Plaintiffs allege that managers viewed photographs during the calibration process, “which result[ed] in identifying the skin color of members of Plaintiff class.” Id. at ¶ 93. In other words, Plaintiffs claim that individual managers looked at photographs of employees in the calibration process and then intentionally rated African American employees lower because of their race. A disparate impact claim cannot survive where it rests upon an allegation of intentional discrimination. See, e.g., Johnson v. Metro. Gov. of Nashville, 502 F. App’x 523, 542 (6th Cir. 2012) (district court properly dismissed plaintiff’s disparate impact claim where plaintiff alleged that employer ignored objective criteria “because of an intent to discriminate” because “this type of allegation was more akin to a disparate treatment claim than it was to a disparate impact claim”); 15

Whether an individual actor was “predisposed” to discriminate and “acted on that predisposition” are factors considered by Michigan Courts in intentional discrimination cases. See Singal v. Gen. Motors Corp., 447 N.W.2d 152, 155-56 (1989).

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Flatt v. Elec. Research Mfg. Corp., 103 F.3d 129 (6th Cir. 1996) (upholding the district court’s sua sponte dismissal of plaintiff’s disparate impact claim because the allegations that employer has “practice” of “running off” women employees suggested that the employer acted in an overtly discriminatory manner).16 Further, Plaintiffs’ Complaint fails to allege any causal connection between any specific component of the PLM process (none of which would inherently cause a disproportionate impact on African American employees as compared to white employees) and the alleged race disparities. This is well exemplified by Plaintiffs’ description of M. Williams’ and C. Williams’ claims. M. Williams alleges that she learned that her initial 2015 PLM rating was downgraded from a “high achiever” after management engaged in the calibration process. Compl. ¶ 56. C. Williams alleges that she had a PLM rating of “Medium” overall for 2015, which was downgraded to a “Low” PLM rating of “4” after management engaged in the calibration process. Id. at ¶ 57. However, Plaintiffs fail to allege that similar adjustments were not made to the employee ratings of salaried, non-union, nonAfrican American employees or that Plaintiffs’ performance ratings (or those of other African American employees) were adjusted downward more often than those of non-African American employees.

16

Without more, a claim that a

FCA US does not concede that Plaintiffs have or can provide statistical data to support their claim that the PLM process caused a statistically significant discriminatory impact as to African Americans and reserves its right to address that issue at a later time.

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multifaceted process like the PLM process causes a disparate impact is not plausible. Adams v. City of Jackson, 742 F.3d 720, 733 (7th Cir. 2014) (affirming dismissal of disparate impact claims: “[f]or all its heft, the amended Complaint alludes to disparate impact in wholly conclusory terms”). Where Plaintiffs fail to allege any causal bridge connecting an alleged ranking process to the alleged disparity, it is wholly inappropriate to assume one exists. Joe’s Stone Crab, Inc., 220 F.3d at 1280-81. For these reasons, Plaintiffs’ disparate impact claims in Counts I and III (and Count II to the extent such is pled) fail as a matter of law.

VI.

PLAINTIFFS’ CLASS CLAIMS SHOULD BE DISMISSED OR STRICKEN IN THEIR ENTIRETY FOR LACK OF STANDING AND FAILURE TO PLEAD RULE 23 REQUIREMENTS. A.

Plaintiffs Lack Standing To Pursue The Class Claims Asserted In The Complaint.

Under basic principles of standing, a plaintiff must allege and show that she personally suffered an injury-in-fact, traceable to the challenged conduct of the defendant. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “That a suit may be a class action… adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.’” Id. at n.6 (citing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40, n.20 (1976)). As the Supreme Court has observed: It is not enough that the conduct of which the plaintiff complains will 33

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injure someone. The complaining party must also show that he is within the class of persons who will be concretely affected. Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.

Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (emphasis in original).

Here, Plaintiffs purport to seek relief on behalf of the class for the following alleged injuries arising from their 2014 and 2015 PLM ratings:

reduced

compensation/bonuses, loss of promotional opportunities, disproportionately being subject to demotion, less retention, development, succession or advancement opportunities, and/or being placed on a PIP under threat of termination. See Compl. ¶¶ 74, 77, 82, 94. However, none of the Plaintiffs allege that they suffered any of these injuries due to their PLM ratings. As set forth above, Plaintiffs Carthens, Thompson, DeForrest, Weiss, Brown, and Hill do not allege that they were subject to the PLM process at all, much less that they were injured by it in any way. See supra Part III. Plaintiff M. Williams was not employed in 2014, did not receive a PLM rating for that year, and (therefore) could not possibly have been injured by a rating she never received. See Compl. ¶ 5. And, M. Williams does not allege that she suffered any injury as a result of her 2015 PLM rating.17 Similarly, C. Williams does not allege that she received a “low” PLM

17

Indeed, M. Williams does not allege that she, herself, ever received a PLM rating of 5 or below, or that she received less pay/bonuses, fewer advancement 34

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rating for 2014. See Compl. ¶ 128. And, although she alleges that she received a PLM rating of “4” for 2015, she does not allege that she personally received lesser pay or fewer advancement opportunities because of her rating.18 Because Plaintiffs do not claim to have suffered any injury arising from their 2014 and 2015 PLM ratings, they do not have standing to pursue their individual claims, let alone any claims on behalf of the class. Accordingly, Counts I-III must be dismissed. See, e.g., Potts v. United Parcel Serv., Inc., No. 07 C 3949, 2008 WL 3884370 (N.D. Ill. May 9, 2008) (dismissing class action complaint where named plaintiff was not subject to any of the injuries alleged on behalf of the class).

B.

Fed. R. Civ. P. 23 Prerequisites For Proceeding On A Class Basis Are Not Sufficiently Pled.

Plaintiffs also fail to plead that the basic requirements of Fed. R. Civ. P. 23 (“Rule 23”) are met. The Federal Rules of Civil Procedure require this Court to determine whether to certify this lawsuit as a class action “at an early practicable

opportunities or was demoted because of her PLM rating. Quite to the contrary, her only allegation relating to her own PLM rating is that she “learned that her initial PLM rating was downgraded from high achiever after management engaged in the calibration process.” See Compl. ¶ 56. M. Williams claims only that she “observed” that other African American employees received ratings “adversely impacting advancement opportunities and increase in pay, among other losses.”

Id. at ¶ 58.

18 The only injury C. Williams alleges to have suffered as a result of her “low” PLM rating for 2015 (only) is “wrongful termination,” which Plaintiffs concede pertains “only” to Plaintiff C. Williams and not the class. See Compl. Count VI. 35

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time.” Fed. R. Civ. P. 23(c)(1)(A); accord Fed. R. Civ. P. 12(f); Fed. R. Civ. P. 23(d)(1)(D) (courts have the power to issue an order “requir[ing] that the pleadings be amended to eliminate allegations about representation of absent persons [i.e., class members] and that the action proceed accordingly”). Where it is clear from the face of the complaint that a proposed class cannot satisfy the Rule 23 requirements, the class allegations may be stricken or dismissed. See, e.g., Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 946 (6th Cir. 2011) (affirming dismissal of Rule 23(b)(3) class where predominance requirement was not met).

The legal standard is the same as that applied in deciding a motion to dismiss under Rule 12(b)(6). Schilling v. Kenton Cnty., No. CIV.A. 10-143-DLB, 2011 WL 293759, at *11 (E.D. Ky. Jan. 27, 2011). Here, Plaintiffs failed to adequately plead that any of the Rule 23 prerequisites are met.19 Under Rule 23(a)(2), a plaintiff must show that “there are questions of law or fact common to the class” (“commonality”), and under Rule 23(a)(3), a plaintiff must show that the “claims or defenses of the representative parties are typical of the claims or defenses of the class” (“typicality”). Fed. R. Civ. P. 23(a)(2), (3). As

19

Pursuant to Rule 23(a)(1), the class must be so numerous that joinder of all members is impracticable. See Fed. R. Civ. P. 23(a)(1). Here, Plaintiffs claim only that “hundreds (if not thousands) of salaried workers” are subjected to the evaluation system. Compl. ¶ 79. The class does not, however, include all salaried workers. Because Plaintiffs have failed to plead that the class, as defined by Plaintiffs, is sufficiently numerous, Plaintiffs’ class allegations must be dismissed or stricken.

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the Supreme Court observed, the “commonality and typicality requirements of Rule 23(a) tend to merge.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982).

In the seminal U.S. Supreme Court decision Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 353-54 (2011), the Court provided clarity regarding the commonality and typicality inquiry. In Dukes, current and former employees claimed that local managers exercised their discretion over pay and promotions in a “subjective manner,” which had a disparate impact on female employees. Id. at 343. With respect to commonality, the Court explained: Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean merely that they have all suffered a violation of the same provision of law…. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.

Id. at 349-50 (emphasis added). The Court explained that commonality was not satisfied because “[o]ther than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’ – much less one that ties all their 1.5 million claims together.” Id. Plaintiffs’ class allegations fail these basic requirements. First, Plaintiffs do 37

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not allege that they suffered any injury, let alone the same injuries as those allegedly suffered by the class. See supra Part VI, A. Second, Plaintiffs’ class allegations are nothing more than a “formulaic recitation” of the Rule 23 elements.

Twombly, 550 U.S. at 555. For example, with respect to typicality, Plaintiffs simply allege: “Plaintiffs’ claims are typical of the claims of the members of the Class and they are an adequate representative of the Class.” Compl. ¶ 84. This is not enough. See Schilling, 2011 WL 293759, at *4 (“If Plaintiffs are unable to establish even just one of the prerequisites of subdivisions (a) or (b), the class allegations must be dismissed.”).20 Third, Plaintiffs do not identify any uniform employment practice that would provide the commonality needed for a class action. To the contrary, as in Dukes, Plaintiffs allege only that Defendant had a policy of discretion. First, a direct supervisor exercised their discretion by evaluating an employee as “high,” “medium,” or “low.” Compl. ¶ 46. Next, an undefined group of “management” would “subjectively” calibrate these ratings, and assign a PLM rating of 1-9. Id. at ¶¶ 46-51, 74. To this end, Plaintiffs do not allege what, if anything, ties together the 2015 PLM rating received by M. Williams, a Diversity Manager in Michigan, with any other Plaintiffs, whose positions, managers, or work locations are not 20

Defendant does not concede that any of the Rule 23 prerequisites are met here (including the adequacy of representation requirement in Rule 23(a)(4)), for the reasons stated herein, and for other reasons, which Defendant will address at a later date, if such is necessary.

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identified in the Complaint. Quite to the contrary, Plaintiffs allege only that each employment decision was “subjective” based on the various management involved.

Id. at ¶¶ 50-51, 74-75, 93-94, 104, 110-11. As the Supreme Court observed in Dukes, however, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Dukes, 564 U.S. at 355. And, unlike in Dukes, and what makes this case especially compelling for dismissal on the pleadings, Plaintiffs do not allege that a uniform, companywide policy of discrimination exists, or point to any other “glue” that would tie together how each individual manager exercised his or her discretion. Because Plaintiffs do not plead any facts which suggest that all of the potential putative class members’ claims will depend on answers to common questions, Plaintiffs’ allegations fail to satisfy commonality and typicality, and must be dismissed.21 CONCLUSION For the foregoing reasons, the Complaint should be dismissed in its entirety.

As an initial matter, the EDRP is fully enforceable as to all Plaintiffs. The Motion to Compel arbitration should be granted and the Complaint dismissed in its entirety

21

Plaintiffs fail to plead that Rule 23(b)(2) is satisfied, because “claims for individualized relief (like the backpay at issue here) do not satisfy [Rule 23(b)(2)].” Dukes, 564 U.S. at 360. Further, Plaintiffs Brown, Weiss, M. Williams, C. Williams, and Carthens are all former employees and do not have standing to seek an injunction pursuant to Fed. R. Civ. P. 23(b)(2). Id. at 364-65 (former employees have “no claim for injunctive or declaratory relief at all” under Rule 23(b)(2)).

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for this reason alone. Furthermore, the Complaint as to six of the eight Plaintiffs should be dismissed based upon the agreed upon shortened statute of limitations.

Moreover, other identified deficiencies in the Complaint provide significant bases for dismissal on other grounds: six of the eight Plaintiffs fail to satisfy the minimum pleading requirements of stating a claim of discrimination; none of the Plaintiffs exhausted their administrative remedies as to the asserted class claims; none of the Plaintiffs state a disparate impact claim; all Plaintiffs lack standing to assert class claims; and all Plaintiffs failed to plead the requisite elements of Rule 23 to support their alleged class claims.

Respectfully submitted,

Dated: May 15, 2017

/s/Jerome R Watson (P27082) Miller, Canfield, Paddock & Stone, P.L.C. Attorney for Defendant 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com

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CERTIFICATE OF SERVICE I hereby certify that on May 15, 2017, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to: Shereef H. Akeel Hasan Kaakarli Michael L. Pitt Megan A. Bonanni Robert W. Palmer Carey S. McGehee

shereef@akeelvalentine.com hasan@akeelvalentine.com mpitt@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com cmcgehee@pittlawpc.com

/s/Jerome R. Watson Miller, Canfield, Paddock & Stone, P.L.C. Attorney for Defendant 150 West Jefferson Ave., Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com P27082

147602813

41