Plaintiffs' Third Amended Complaint

Case 2:17-cv-10097-LJM-EAS ECF No. 48 filed 12/20/18

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION PAMELA WILLIAMS CARTHENS, LEVEN WEISS, J.D., CLARENCE PRESLEY II, ELLIS JEFFERSON, DARLENE COLLINS, TRACY FITZPATRICK, and ROBERT JOHNSON, on behalf of themselves and all others similarly situated,

Case No. 17-10097

Plaintiffs,

Hon. Laurie J. Michaelson

vs

CLASS ACTION

FCA US LLC, Defendant.

MILLER CANFIELD Jerome R. Watson (P27082) M. Misbah Shahid (P73450) Attorneys for Defendant 150 W. Jefferson Ave., Suite 2500 Detroit, MI 48226 (313) 963-6420 watson@millercanfield.com shahid@millercanfield.com

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam Akeel (P81328) 888 W. Big Beaver Road, Suite 420 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com

LITTLER MENDELSON, P.C. Daniel E. Turner (Ga No. 719330) Tasha K. Inegbenebor (Ga No. 382905) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com tinegbenebor@littler.com

PITT, MCGEHEE, PALMER & RIVERS Michael L. Pitt (P24429) Cary S. McGehee (P42318) Robert W. Palmer (P31704) Beth M. Rivers (P33614) Megan A. Bonanni (P52079) 1

Case 2:17-cv-10097-LJM-EAS ECF No. 48 filed 12/20/18

117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com rpalmer@pittlawpc.com brivers@pittlawpc.com mbonanni@pittlawpc.com

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Jacqueline Phipps Polito 375 Woodcliff Drive 2nd Floor Fairport, NY 14450 (585) 203-3400 jpolito@littler.com Attorneys for Defendant

Attorneys for Plaintiffs PLAINTIFFS’ THIRD AMENDED CLASS ACTION COMPLAINT NOW COME Plaintiffs, PAMELA WILLIAMS CARTHENS, LEVEN WEISS, J.D., CLARENCE PRESLEY II, ELLIS JEFFERSON, DARLENE COLLINS, TRACY FITZPATRICK, and ROBERT JOHNSON (“Plaintiffs” or “Class Representatives”), individually and on behalf of all others similarly situated, by and through their attorneys, AKEEL & VALENTINE, PLC, and PITT, MCGEHEE, PALMERS, & RIVERS, PC, and state as follows: NATURE OF CLAIM 1.

This is a proposed class action for damages, declaratory, and

injunctive relief against Defendant, Fiat Chrysler Automobiles (hereinafter referred to as “FCA”), to redress the violations and threatened violations of the rights of Plaintiffs and the putative class they represent (collectively hereinafter “Class” or “Plaintiff Class”) under Title VII, the Elliott-Larsen Civil Rights Act (“ELCRA”), MCL 37.2101 et seq., and for Equal Rights Under the Law, 42 U.S.C. § 1981.

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2.

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Plaintiff Class also seek compensatory damages against Defendant to

redress the violations and threatened violations of the rights of Plaintiff Class under Title VII, ELCRA, and 42 U.S.C. ยง 1981.

3.

As

Class

Representatives,

Plaintiffs

PAMELA

WILLIAMS

CARTHENS, LEVEN WEISS, J.D., CLARENCE PRESLEY II, ELLIS JEFFERSON, DARLENE COLLINS, TRACY FITZPATRICK, and ROBERT JOHNSON, respectively, seek to represent salaried, non-union African American employees who have been subjected to a systematic, adverse disparate impact, and pattern or practice of race discrimination described in this Complaint, stemming from specific, identifiable company policy utilized by Defendant in the evaluation and rating of employees which had a direct negative correlation on compensation, bonuses, promotions, privileges, benefits, and other terms and conditions of their employment.

PARTIES 4.

Plaintiff, PAMELA WILLIAMS CARTHENS, an African American,

was an employee of Defendant at all relevant times herein, and is a resident of the State of Michigan.

5.

Plaintiff, PAMELA WILLIAMS CARTHENS, began employment

with Defendant on or around September 1986 and retired from the Company on or around January 2017.

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6.

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Plaintiff, PAMELA WILLIAMS CARTHENS, has a degree

(Bachelor of Science) in Electrical Engineering and a Master’s in Business Administration, with a job classification of Mid-Level Professional.

7.

Plaintiff, LEVEN WEISS, J.D., an African American, is an employee

of Defendant at all relevant times herein, and is a resident of the State of Michigan.

8.

Plaintiff, LEVEN WEISS, J.D., began employment with Defendant on

or around December 1985 and retired from the Company on or around March 2016.

9.

Plaintiff, LEVEN WEISS J.D., has a degree in Business

Administration and is a Juris Doctor, with a job classification of Senior Manager.

10.

Plaintiff, CLARENCE PRESLEY II, an African American, is an

employee of Defendant at all relevant times herein, and is a resident of the State of Michigan.

11.

Plaintiff, CLARENCE PRESLEY II, began employment with

Defendant on or around March 1995 and remains employed today.

12.

Plaintiff, CLARENCE PRESLEY II, has a Bachelor’s degree in

Organizational Skills and a Master’s degree in Leadership, and has a job classification of Professional.

13.

Plaintiff, ELLIS JEFFERSON, an African American, is an employee

of Defendant at all relevant times herein, and is a resident of the State of Michigan.

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14.

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Plaintiff, ELLIS JEFFERSON, began employment with Defendant on

or around February 1994 and remains employed today.

15.

Plaintiff, ELLIS JEFFERSON, has a Master’s degree in Mechanical

Engineering, and has a job classification of Mid-level Professional.

16.

Plaintiff, DARLENE COLLINS, an African American, is an

employee of Defendant at all relevant times herein, and is a resident of the State of Michigan.

17.

Plaintiff, DARLENE COLLINS, began employment with Defendant

on or around May 1989 and remains employed today.

18.

Plaintiff, DARLENE COLLINS, has a Bachelor’s of Science Degree

in Chemistry, a Master’s Degree in Business Administration, and has a job classification of Mid-level Professional.

19.

Plaintiff, TRACY FITZPATRICK, an African American, is an

employee of Defendant at all relevant times herein, and is a resident of the State of Michigan.

20.

Plaintiff,

TRACY

FITZPATRICK,

began

employment

with

Defendant on or around February 1995 and remains employed today.

21.

Plaintiff, TRACY FITZPATRICK, has Associate’s degrees in

Paralegal Studies and Liberal Arts, a Bachelor’s degree in Legal Administration, a

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Master’s degree in Business Administration, and has a job classification of Midlevel Professional.

22.

Plaintiff, ROBERT JOHNSON, an African American, is an employee

of Defendant at all relevant times herein, and is a resident of the State of Michigan.

23.

Plaintiff, ROBERT JOHNSON, began employment with Defendant

on or around February 1976 and remains employed today.

24.

Plaintiff, ROBERT JOHNSON, has a Technical Degree, a Bachelor’s

degree in Business Administration, a Master’s degree in Business Administration, and has a job classification of Senior Professional.

JURISDICTION AND VENUE 25.

Defendant, FCA, is a Foreign Limited Liability Company

incorporated in Delaware.

26.

FCA has sufficient minimum contacts in Michigan, or otherwise has

purposely availed itself of the markets within Michigan, through the promotion, sale, marketing, and distribution of its vehicles, in addition to having its principle place of business or headquarters in Michigan to render the exercise of jurisdiction by this Court proper and necessary.

27.

This Court has subject-matter jurisdiction pursuant to 28 U.S.C. §

1331, because Plaintiffs’ claims raise a federal question under 42 U.S.C. 2000e and 42 U.S.C. § 1981.

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28.

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This Court, also, has subject-matter jurisdiction pursuant to 28 U.S.C.

§ 1332(d)(2).

29.

The amount in controversy exceeds $5,000,000.00, excluding interest

and costs.

30.

At least one class member is diverse from Defendant.

31.

This Court also has supplemental jurisdiction over Plaintiffs’ claims

under Michigan law pursuant to 28 U.S.C. § 1367(a) because they are inextricably intertwined with the federal claims and arise out of the same nucleus of operative facts.

32.

Venue is proper in this district as Defendant conducts business within

the Eastern District of Michigan and is subject to personal jurisdiction within the Eastern District of Michigan and a substantial part of the events giving rise to the claims alleged occurred in the Eastern District of Michigan. See 29 U.S.C. § 1391(b).

33.

For its Title VII claims, Plaintiff(s) exhausted their administrative

remedies, either individually or through other filings made with the EEOC, on behalf of themselves and on behalf of a class of similarly situated individuals, including: a. On or around Employment discrimination retaliation for

March 9, 2017, after filing a charge with the Equal Opportunity Commission (“EEOC”) for race on her behalf and others similarly situated, as well as herself individually, Marlin Williams (“Marlin”), a 7

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former class representative in this instant action whose claims are now to be arbitrated, was issued a Right to Sue letter, and this class action was timely filed in accordance with that letter. (Exh. A – Marlin Charge; Exh. B – March 9 Right to Sue Letter). b. Similarly, after filing charges with EEOC for race discrimination and retaliation on her own behalf against Defendant FCA, Cora Williams, also a former class representative in this instant class action whose claims are now to be arbitrated, was also issued two Right to Sue letters. (Exh. C – February 22, 2017 and February 24, 2017 Right to Sue Letters). c. Additionally, Pamela Williams-Carthens (“Pamela”), a class representative in this instant action since it was first amended on January 31, 2017, received her Right to Sue letter on June 29, 2017 after filing charges with the EEOC for race discrimination against Defendant FCA. (Exh. D – Pamela Charge; Exh. E – June 29, 2017 Right to Sue Letter).

APPLICABLE FACTS 34.

Plaintiffs incorporate by reference the foregoing paragraphs, as

though fully set forth herein.

DEFENDANT APPOINTS A DIVERSITY MANAGER 35.

On or around September 2015, Defendant FCA promoted one of its

own employees, Marlin Williams, to the position of Diversity Manager.

36.

Defendant FCA assigned its Diversity Manager company-wide

responsibilities, which included improving diversity representation of minorities, implementing and promoting a culture of diversity, tolerance and inclusion, and increasing accountability for diversity, inclusion, and respect.

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Indeed, Defendant’s Diversity Manager was selected to assume many

of the duties previously assigned to the Director of Talent Acquisition and Diversity.

38.

Defendant’s Diversity Manager’s duties included developing a

program that would be effective in recruiting, developing, retaining, and promoting a diverse workforce for Defendant.

39.

Defendant’s Diversity Manager’s duties also included identifying

performance and leadership gaps of a diverse population, which includes all genders, races, and ethnicities.

40.

As part of the position’s responsibilities, specifically in trying to

implement an effective employee retention program, Defendant’s Diversity Manager also monitored and compared compensation in order to highlight potential discrepancies in pay equity and advancement opportunities for employees of all races, gender, and ethnicities.

41.

Defendant’s

Diversity

Manager

also

undertook

performance

comparisons in order to compare and highlight inequities or discrepancies in ratings, goals, and evaluations.

THE PLM/RATING/RANKING PROCESS 42.

Pertaining to this action, Defendant FCA maintains job compensation

categories, bands, and/or titles for salaried employees in which employees, in part, 9

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are classified from higher to lower management levels in the following manner: Senior Manager, Senior Professional, Mid-Level Professional, and Professional.

43.

Plaintiffs and the similarly-situated employees in the Plaintiff Class

currently have or previously had assigned job titles within the range of Senior Manager, Senior Professional, Mid-Level Professional, and Professional.

44.

Throughout their employment with FCA or its predecessor(s),

Plaintiffs and all other similarly-situated salaried employees were subjected to an annual rating/ranking system known as Performance and Leadership Management (“PLM”).

45.

The Company policy that drives the disparate impact on

Black/African American employees is the forced distribution or ranking policy (“Forced Ranking Policy”) implemented or used as a directive during a calibration process (“Calibration Process”) of the PLM, as set forth below in greater detail.

46.

The Forced Ranking Policy implemented during the Calibration

Process is the glue, or the single factor/policy, that has caused the disparate impact on African American FCA employees, as set forth below.

47.

The PLM uses Nine Boxes consisting of three rows of three boxes.

The boxes are presented on a vertical and horizontal axis: the vertical axis represents “Performance” traits and the horizontal axis represents “Leadership” traits.

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The highest Box on the vertical Performance Axis is on the top row.

The highest Box on the horizontal Leadership Axis is in the third row from the axis. The highest possible rating for both Performance and Leadership would be placement in the top-right box.

49.

The Red Boxes – 1, 2, and 4 – reflect either a poor leader or poor

performer; the Yellow Boxes – 3, 5, and 7 – reflect either a mediocre to poor leader or performer; and the Green Boxes – 6, 8, and 9 – reflect either a high performer, leader, or both.

50.

A salaried employee’s initial PLM rating, as issued by their direct

supervisor, is generally known as the Performance and Leadership Management Rating, or “PLM Rating.”

51.

FCA’s PLM utilizes a Forced Ranking Policy. This means that there

are mandatory fixed percentage (or numerical value) limitations on the number of

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salaried employees who can receive the high ratings and requires that a number of salaried employees are to receive the low ratings.

52.

The PLM’s Forced Ranking Policy means that groups of salaried

employees are forced to be rated, compared, or ranked against one another and their ratings are then distributed where some receive higher ratings and others receive lower ratings. Senior management instructs lower level managers (or the evaluating managers) that there are mandatory percentage (or numerical value) limitations on the number of salaried employees who can receive the higher ratings. This would mean that regardless of performance, a limited fixed number would be given a good or favorable rating or score in the Green Box (6, 8, or 9) reflecting above-average or exceptional performance, and the rest would be given mediocre or inferior scores – other than 6, 8, or 9 – to meet the Forced Ranking Policy.

53.

In order to achieve this Forced Ranking Policy objective, FCA

personnel meet and conduct what is generally known as a Calibration Process. It is during this process that evaluating managers assemble and bring forward the names of salaried employees in their units and implement the Forced Ranking Policy by collectively assigning or forcing a score for each employee in accordance with mandatory percentage (or numerical value) objectives established by upper Senior Management (“Forced Ranking/Calibration Process”).

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During the Forced Ranking/Calibration Process, evaluation managers

– who may not know or have even worked with the employees they are to evaluate – have access to photos, ages, and/or Employee Identification numbers (“Employee ID”) of each employee.

55.

During the Forced Ranking/Calibration Process, evaluating managers

then debate what scores to assign each of the respective employees based on the Forced Ranking Policy prescribed by upper management.

56.

Evaluating managers then assign all the employees ratings or scores

distributed in a manner that correspond with the Forced Ranking Policy. This means that only a certain percentage of employees can receive a favorable or high performer score in the Green Box; and a different percentage of employees can receive either mediocre to poor scores found in either the Yellow or Red Boxes.

57.

A salaried employee could receive a PLM Rating of “6” from an

immediate supervisor but his or her score could move down during the Forced Ranking/Calibration Process in order to achieve the Forced Ranking Policy mandated by Senior Management.

58.

The employee’s final PLM score after the Forced Ranking/Calibration

Process, which may differ from the “PLM Rating” issued by the immediate supervisor, is a numerical score known as the “PLM Score.”

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59.

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The PLM Scores control the allocation of merit increases, bonuses,

and other forms of incentive compensation.

60.

Placement on the Nine Box hierarchy will also control promotion and

transfer opportunities.

61.

Poor performance on the Nine Box hierarchy could result in being

placed on a Performance Improvement Plain (“PIP”) with the threat of impending termination if not completed.

62.

The PLM’s Forced Ranking/Calibration Process (driven by the Forced

Ranking Policy) is implemented in a manner that disproportionately favors nonAfrican American FCA salaried employees.

63.

The forced-ranking method of rating or ranking employees has been

associated with unlawful discrimination because it relies on stereotypes and results in favoring non-African American employees. See Journal of Human Rights, ABA, Volume 31, no.2. (Exh. E). (https://www.americanbar.org/publications/human_rights_magazine_home/human _rights_vol31_2004/spring2004/hr_spring04_forced.html) 64.

The Forced Ranking/Calibration Process of the PLM system is a long-

standing and demonstrable practice, process, and/or policy implemented companywide, which, upon information and belief, has been used since 2010 and continues to date as a process, policy, or practice of rating employees under the direction, 14

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supervision, and control of senior leadership, led by the late CEO Sergio Marchionne.

65.

And as a result of the Forced Ranking/Calibration Process, employees

with higher PLM Scores – in Green Boxes – receive higher bonuses and additional pay awards, in addition to increased opportunities for advancement.

66.

By contrast, employees with lower PLM Scores receive lesser or no

bonuses and pay awards, and face diminished opportunities for advancement.

67.

Upon information and belief, on a company-wide basis, and as a result

of the Forced Ranking Policy implemented during the Forced Ranking/Calibration Process, non-African American, salaried, non-union employees with job titles of Senior Manager to Professional disproportionately receive higher PLM Scores in the Green Boxes, and consequently higher bonuses than salaried, non-union, African American employees, including Plaintiffs.

68.

In other words, salaried, non-union, African American employees

who were subject to the Forced Ranking Policy implemented or employed during the Calibration Process have been rated with lower PLM Scores at a disproportionate rate when compared to salaried, non-union, non-African American employees.

69.

Upon information and belief, as a result of the annual Forced

Ranking/Calibration Process driven by the Forced Ranking Policy, and used on a 15

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company-wide basis, during the years 2014 through the present, the PLM Scores for Plaintiffs and similarly-situated members of the Plaintiff Class were disproportionately lower than non-African American employees.

70.

In other words, the Forced Ranking Policy, which is employed,

directs, and/or is implemented during the Forced Ranking/Calibration Process to achieve the management mandated fixed percentage (or numerical value) objective, has caused a disparate impact on African Americans for at least the years 2014 through the present when considering employees categorized as mediocre to poor performers (Red and Yellow Boxes), in comparison to those categorized as above average or exceptional performers (Green Boxes).

71.

In fact, documentation had been filed previously with the Court (Dkt.

# 10) which further corroborate the disparate impact African American employees had been subjected to in receiving lower PLM Scores, in comparison to their nonAfrican American counterparts, as a result of the Forced Ranking/Calibration Process driven by the Forced Ranking Policy.

72.

As a result of the Forced Ranking/Calibration Process, members of

Plaintiff Class were disproportionately given lower scores, thus resulting in the receipt of lower bonuses and compensation.

73.

As a result of Defendant’s Forced Ranking/Calibration Process,

Plaintiff, Pamela Williams Carthens, received PLM Scores of 5, 5, and 4 in 2014, 16

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2015, and 2016, respectively, which resulted in receipt of reduced compensation and/or bonuses.

74.

As a result of Defendant’s Forced Ranking/Calibration Process,

Plaintiff, Leven Weiss, received PLM Scores of 5 and 5 in 2014 and 2015, respectively, which resulted in receipt of reduced compensation and/or bonuses.

75.

As a result of Defendant’s Forced Ranking/Calibration Process,

Plaintiff, Clarence Presley II, received PLM Scores of 4, 4, 5, and 5 in 2014, 2015, 2016, and 2017, respectively, which resulted in receipt of reduced compensation and/or bonuses.

76.

Due to his low 2014 and 2015 PLM Scores, Plaintiff Presley II was

wrongfully placed on a PIP for each of those years. Although Plaintiff Presley II successfully completed the terms of his PIPs, being on a PIP significantly reduces his chances of receiving a promotion in the future.

77.

As a result of Defendant’s Forced Ranking/Calibration Process,

Plaintiff, Ellis Jefferson, received PLM Scores of 5, 5, 4, and 4 in 2014, 2015, 2016, and 2017, respectively, which resulted in receipt of reduced compensation and/or bonuses.

78.

As a result of Defendant’s Forced Ranking/Calibration Process,

Plaintiff, Darlene Collins, received PLM Scores of 5, 4, 5, and 5 in 2014, 2015,

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2016, and 2017, respectively, which resulted in receipt of reduced compensation and/or bonuses.

79.

As a result of Defendant’s Forced Ranking/Calibration Process,

Plaintiff, Tracy Fitzpatrick, received PLM Scores of 5, 5, 5, and 5 in 2014, 2015, 2016, and 2017, respectively, which resulted in receipt of reduced compensation and/or bonuses.

80.

As a result of Defendant’s Forced Ranking/Calibration Process,

Plaintiff, Robert Johnson, received PLM Scores of 4, 5, 5, and 4 in 2014, 2015, 2016, and 2017, respectively, which resulted in receipt of reduced compensation and/or bonuses.

81.

At all times relevant hereto, Defendant was aware that the Forced

Ranking/Calibration Process had an adverse impact on salaried, non-union, nonAfrican American employees, but failed to take remedial action to correct the racebased adverse impact.

82.

Defendant’s Forced Ranking/Calibration Process is not a discrete act,

but rather is a company-wide, discriminatory performance rating and compensation scheme that resulted in an adverse impact against Plaintiffs and Plaintiff Class.

83.

Plaintiffs’ and Plaintiff Class’s claims do not encompass, include, or

relate to: the permanent separation of employees, layoff, demotion (or a Salary Band reduction), handicap accommodations, and/or sexual harassment.

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CLASS ACTION ALLEGATIONS 84.

Plaintiffs incorporate by reference the foregoing paragraphs, as

though fully set forth herein.

85.

Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(b)(2) and

(b)(3), individually, and on the behalf of: a. All salaried, non-union African American employees from the Comp Level of Senior Manager to Professional only, employed or formerly employed by Defendant, that were subjected to the Forced Ranking/Calibration Process driven by the Forced Ranking Policy and received medium to poor PLM scores of 5 or below for the years 2014 through the present. b. All salaried, non-union African American employees from the Comp Level of Senior Manager to Professional only, employed or formerly employed by Defendant, that were subjected to the Forced Ranking/Calibration Process driven by the Forced Ranking Policy and received PLM scores in the Red or Yellow Boxes for the years 2014 through the present.

Plaintiffs reserve the right to amend this definition as necessary.

86.

Plaintiff Class, from Comp Level Professional to Comp Level Senior

Manager, was more adversely and disproportionately affected by Defendant’s existing

Forced

Ranking

Policy

implemented

during

the

Forced

Ranking/Calibration Process in comparison to non-African American employees.

87.

As a result of Defendant’s pattern or practice and/or policy of

discriminating against African American employees, Plaintiff Class has been

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denied similar employment benefits and opportunities afforded to white employees and/or non-African American employees.

88.

Such disparate impact affects Plaintiff Class in a number of ways,

including, but not limited to, bonuses for a given year, additional compensation, other privileges and benefits, and/or future advancement opportunities.

89.

Plaintiffs seek to maintain this class, pursuant to Federal Rules of

Civil Procedure 23, on the issues of whether Defendant engaged in unlawful discrimination and whether Defendant should be enjoined from continuing its discriminatory pattern or practice and/or policies.

90.

The Class is so numerous that joinder of all members is impracticable;

hundreds (if not thousands) of salaried workers have been subjected to Defendant’s performance evaluation system or the Forced Ranking/Calibration Process.

91.

Plaintiffs do not know the precise number of the Class, but can easily

ascertain this information from Defendant’s records.

92.

Common questions of fact and law exist as to all members of the

Class and predominate over any questions solely affecting individual members of the Class.

93.

Among the questions of law and fact in common to Plaintiff Class is

whether Defendant violated Title VII, ELCRA, and 42 U.S.C. § 1981 by implementing their Forced Ranking/Calibration Process in such a manner that 20

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resulted in a disparate impact on African Americans by, among other things, disproportionately receiving lower PLM Scores resulting in lower pay raises, and bonuses.

94.

In other words, Defendant’s Forced Ranking/Calibration Process has

had a significant disparate impact on qualified African Americans, including Plaintiff Class.

95.

Plaintiffs’ claims are typical of the claims of the members of the Class

and they are an adequate representative of the Class.

96.

Plaintiffs and members of the Class have sustained damages because

of Defendant’s unlawful activities alleged herein.

97.

Plaintiffs have retained counsel, competent and experienced in

employment, civil rights, and race discrimination litigation, and intend to prosecute this action vigorously.

98.

Conflicts of interest between class members can be avoided by the

creation of subclasses.

99.

Class certification is also appropriate because this Court can designate

particular claims or issues for class-wide treatment and may designate one or more subclasses pursuant to Fed. R. Civ. P. 23(c)(4). Martin v. Behr Dayton Thermal Products LLC, 896 F.3d 405 (6th Cir. 2018).

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100. Issues this Court may designate for class-wide treatment pursuant to Fed. R. Civ. P. 23 (c)(4) may include: a. Whether there exists (or existed) a Forced Ranking Policy for any year – from 2014 to the present – that forces (or forced) managers to rank or rate employees, like Plaintiffs, against one another; b. Whether there exists (or existed) a Forced Ranking Policy in any year – from 2014 to the present – that forces (or forced) managers to distribute PLM Scores (from 1 to 9) among employees, like Plaintiffs, based on a fixed percentage or numerical value mandate and which caused a disparate impact on African American or black employees, in comparison to other employees; c. Whether a Forced Ranking Policy has or had been implemented in any year – from 2014 to the present – during the Calibration Process, when issuing PLM Scores to employees, like Plaintiffs, and which caused a disparate impact to African American or black employees, in comparison to other employees; d. Whether Defendant FCA’s Forced Ranking Policy has caused a disparate impact on African American or black employees, like Plaintiffs, for any year – from 2014 to the present – with respect to their PLM Scores, in comparison to other employees; and/or e. Whether the Forced Ranking/Calibration Process has caused a disparate impact on African American or black employees with respect to their PLM Scores for any year – from 2014 to the present – in comparison to other employees.

101. Plaintiffs seek, for themselves and Plaintiff Class, a declaration that their rights were violated, and a judgment awarding them compensatory damages, attorneys’ fees, and costs to make them whole for damages they suffered, and to help ensure Defendant will not subject future workers to the same illegal conduct in the future.

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102. Additionally, Plaintiffs bring this action on behalf of themselves and all salaried, non-union African American employees employed by Defendant for the years 2014 through the present, and were subjected to Defendant’s employee Forced Ranking/Calibration Process, pursuant to Federal Rule of Civil Procedure 23 to remedy violations of Federal law, including 42 U.S.C. § 2000e and 42 U.S.C. § 1981, and Michigan law, including ELCRA, MCL 37.2101 et seq.

COUNT I RACE DISCRIMINATION IN VIOLATION OF TITLE VII BY DEFENDANT FCA AGAINST ALL PLAINTIFFS (DISPARATE IMPACT) 103.

Plaintiffs incorporate by reference the foregoing paragraphs, as

though fully set forth herein.

104. At all material times, Defendant was an employer, covered by and within the meaning of Title VII of the Civil Rights Act of 1964, as amended.

105. Defendant’s Forced Ranking Policy is neutral on its face; however, statistics prove the Forced Ranking Policy, implemented during the Calibration Process, is biased against African Americans, including Plaintiffs and Plaintiff Class.

106. Defendant has used its Forced Ranking Policy through the Calibration Process, which has resulted in disproportionately lower ratings or PLM Scores for

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salaried, non-union African American employees described in the Class definition above, in comparison to their non-African American counterparts.

107. In other words, Defendant’s use of its Forced Ranking/Calibration Process, driven by the Force Ranking Policy, has resulted in a disproportionate number of African American employees (1) losing pay raises, bonuses, and/or promotional potential, and (2) disproportionately being subjected to being placed on PIP under threat of termination.

108. Defendant’s rationale for its discrimination is not a legitimate nondiscriminatory reason for discriminating against African American employees described in the Class definition above.

109. As a result of Defendant’s discriminatory policies, Plaintiff Class has been adversely impacted by having been denied the benefits (e.g. bonuses, pay raises, enhanced retirement benefits, and/or promotion) afforded to non-African American, salaried employees similarly situated, in violation of Title VII. 110. Defendant can evaluate its employees with an alternative evaluation tool with less discriminatory impact.

111. Indeed, there are alternative, less discriminatory, practices that can be implemented to meet Defendant’s operational goals.

WHEREFORE, Plaintiffs, individually and on behalf of Plaintiff Class, request this Court award judgment against Defendant for compensatory damages, 24

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which include back pay and related loss of pay resulting from Defendant’s use of the Forced Ranking/Calibration Process, in whatever amount the jury finds necessary, in addition to punitive or exemplary damages plus costs, interest and attorney fees, as allowed under the Act, plus (1) declaratory relief recognizing that Defendant has unlawfully discriminated against the Class based on their race; (2) injunctive relief prohibiting the consideration of race in evaluations and ending the discriminatory policies described herein; and (3) an award of costs, interest and attorney fees.

COUNT II VIOLATION OF 42 U.S.C. § 1981 PATTERN OR PRACTICE BY DEFENDANT AGAINST ALL PLAINTIFFS 112. Plaintiffs incorporate by reference the foregoing paragraphs, as though fully set forth herein.

113. 42 U.S.C. § 1981(a) provides: (b)

Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

114. Further, 42 U.S.C. § 1981(b) provides: 25

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(b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

115. Plaintiffs were subjected to intentional discrimination because they are African Americans, a protected class.

116. Plaintiffs were qualified for the positions they held and/or continue to hold.

117. Plaintiffs, and Plaintiff Class, were given lower evaluations or PLM Scores than their similarly situated non-African American employees.

118. Defendant FCA, in utilizing a common employment practice (Forced Ranking/Calibration Process) which violated the federal and state antidiscrimination statutes at issue in this case, has systemically engaged in an unlawful pattern and practice of discriminating against the protected employees (black or African American) in a manner that meets the standards set forth in Teamsters v. United States, 431 U.S. 324 (1977).

119. Defendant FCA is complicit in engaging in a pattern and practice of discrimination, which may be drawn from a consistent failure to respond to complaints or implement corrective measures relating to the discriminatory aspects of the Forced Ranking/Calibration Process.

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120. The pattern and practice nature of the discrimination alleged in this case is highlighted by the fact that Senior Management of Defendant FCA was repeatedly informed of the discriminatory nature of certain PLM practices and it has taken the position by its actions that the anti-discrimination laws can be ignored in their pursuit of operational goals.

121. Plaintiffs have experienced all the damages alleged above as a result of Defendant FCA’s pattern and practice of discrimination through use of the unlawful aspects of the Forced Ranking/Calibration Process, driven by the Forced Ranking Policy.

122. Plaintiffs were subjected to an evaluation process where evaluating managers had access to photographs to identify the race of the members of the Class.

123. Had Plaintiffs not been African American, Plaintiffs would not have received such consistently lower PLM Scores in comparison to non-African Americans employees.

124. Defendant has no legitimate business interest for rating Plaintiffs consistently lower than non-African Americans despite Plaintiffs fulfilling company objectives.

WHEREFORE, Plaintiffs request this Court award judgment against Defendant for compensatory damages, which include back pay and related loss of 27

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pay resulting from Defendant’s use of the Forced Ranking/Calibration Process, in whatever amount the jury finds necessary, in addition to punitive or exemplary damages plus costs, interest and attorney fees, as allowed under the Act, plus (1) declaratory relief recognizing that Defendant has unlawfully discriminated against the Class based on their race; (2) injunctive relief prohibiting the consideration of race in evaluations and ending the discriminatory pattern or practice and/or policies described herein; and (3) an award of costs, interest and attorney fees.

COUNT III RACE DISCRIMINATION IN VIOLATION OF TITLE VII BY DEFENDANT FCA AGAINST ALL PLAINTIFFS (DISPARATE TREATMENT) 125. Plaintiffs incorporate by reference the foregoing paragraphs, as though fully set forth herein.

126. At all material times, Defendant was an employer, covered by and within the meaning of Title VII of the Civil Rights Act of 1964, as amended.

127. The race of the members of Plaintiff Class’ was a factor that made a difference in Defendant’s decision to evaluate them lower than their similarly situated, non-African American employees and to subject Plaintiffs to the wrongful and discriminatory conduct described above.

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128. Defendant, by its agents, representatives, and employees, were predisposed to discriminate on the basis of race and acted in accordance with that predisposition.

129. Defendant’s conduct included, but is not limited to, using its Forced Ranking/Calibration Process policy or practice to cause Plaintiffs and Plaintiff Class to receive disproportionately lower ratings or PLM Scores for salaried, nonunion African American employees described in the Class definition above, in comparison to their non-African American counterparts.

130. Defendant’s actions were intentional, with reckless indifference to Plaintiff’s and Plaintiff Class’ rights and sensibilities.

131. Defendant FCA, in utilizing a common employment practice (Forced Ranking/Calibration Process) which violated the federal and state antidiscrimination statutes at issue in this case, has systemically engaged in an unlawful pattern and practice of discriminating against the protected employees (black or African American) in a manner that meets the standards set forth in Teamsters v. United States, 431 U.S. 324 (1977).

132. Defendant FCA is complicit in engaging in a pattern and practice of discrimination, which may be drawn from a consistent failure to respond to complaints or implement corrective measures relating to the discriminatory aspects of the Forced Ranking/Calibration Process.

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133. The pattern and practice nature of the discrimination alleged in this case is highlighted by the fact that Senior Management of Defendant FCA was repeatedly informed of the discriminatory nature of certain PLM practices and it has taken the position by its actions that the anti-discrimination laws can be ignored in their pursuit of operational goals.

134. Plaintiffs have experienced all the damages alleged above as a result of Defendant FCA’s pattern and practice of discrimination through use of unlawful aspects of the Forced Ranking/Calibration Process.

135. If Plaintiff and Plaintiff Class had been of a race other than black or African American, they would not have been treated in the manner described above.

136. As a direct and proximate result of Defendant’s wrongful acts and omissions, Plaintiffs have sustained loss of earnings, earning capacity, and fringe benefits.

WHEREFORE, Plaintiffs request this Court award judgment against Defendant for compensatory damages, which include back pay and related loss of pay resulting from Defendant’s use of the Forced Ranking/Calibration Process, in whatever amount the jury finds necessary, in addition to punitive or exemplary damages plus costs, interest and attorney fees, as allowed under the Act, plus (1) declaratory relief recognizing that Defendant has unlawfully discriminated against 30

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the Class based on their race; (2) injunctive relief prohibiting the consideration of race in evaluations and ending the discriminatory pattern or practice and/or policies described herein; and (3) an award of costs, interest and attorney fees.

COUNT IV RACE DISCRIMINATION IN VIOLATION OF ELCRA, MCL 37.2101 et seq. BY DEFENDANT FCA AGAINST ALL PLAINTIFFS (DISPARATE IMPACT) 137. Plaintiffs incorporate by reference the foregoing paragraphs, as though fully set forth herein.

138. Plaintiffs, and members of Plaintiff Class, are African-American.

139. Plaintiffs, and members of Plaintiff Class, are and were qualified for the positions they held and/or hold with Defendant.

140. Defendant’s Forced Ranking Policy is neutral on its face; however, statistics prove the Forced Ranking Policy, implemented during the Calibration Process, is biased against African Americans, including Plaintiffs and Plaintiff Class.

141. Defendant’s Forced Ranking/Calibration Process, policy, and/or practice regarding their evaluation system has had, and continues to have, a significant disparate impact on African American non-union salaried employees, including Plaintiffs and Plaintiff Class.

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142. The existing performance evaluation system, which includes evaluating managers 1) having access to photographs of employees, and 2) being compelled to assign a PLM Score that meets a fixed percentage mandate (under a forced distribution policy) established by upper management, regardless of employee performance, serves no significant business need.

143. Defendant can evaluate its employees with an evaluation tool with less discriminatory impact.

144. Indeed, there are alternative, less discriminatory, practices that can be implemented to meet Defendant’s operational goals.

WHEREFORE, Plaintiffs, individually and on behalf of Plaintiff Class, request this Court award judgment against Defendant for compensatory damages, which include back pay and related entitled benefits, in whatever amount the jury finds necessary, in addition to punitive or exemplary damages plus costs, interest and attorney fees, as allowed under the Act, plus (1) declaratory relief recognizing that Defendant has unlawfully discriminated against the Class based on their race; (2) injunctive relief prohibiting the consideration of race in evaluations and ending the discriminatory policies described herein; and (3) an award of costs, interest and attorney fees.

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COUNT V RACE DISCRIMINATION IN VIOLATION OF ELCRA, MCL 37.2101 et seq. BY DEFENDANT FCA AGAINST ALL PLAINTIFFS (DISPARATE TREATMENT) 145. Plaintiffs incorporate by reference the foregoing paragraphs, as though fully set forth herein.

146. At all relevant times herein, Plaintiffs and Plaintiff Class were employees and Defendant FCA was their employer, covered by and within the meaning of the Michigan Elliott-Larsen Civil Rights Act, MCL 37.202, et seq.

147. The race of the members of Plaintiff Class’ was a factor that made a difference in Defendant’s decision to evaluate them lower than their similarly situated, non-African American employees and to subject Plaintiffs to the wrongful and discriminatory conduct described above.

148. Defendant, by its agents, representatives, and employees, were predisposed to discriminate on the basis of race and acted in accordance with that predisposition.

149. Defendant’s conduct included, but is not limited to, using its Forced Ranking/Calibration Process policy or practice to cause Plaintiffs and Plaintiff Class to receive disproportionately lower ratings or PLM Scores for salaried, nonunion African American employees described in the Class definition above, in comparison to their non-African American counterparts.

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150. Defendant’s actions were intentional, with reckless indifference to Plaintiff’s and Plaintiff Class’ rights and sensibilities.

151. Defendant FCA, in utilizing a common employment practice (Forced Ranking/Calibration Process) which violated the federal and state antidiscrimination statutes at issue in this case, has systemically engaged in an unlawful pattern and practice of discriminating against the protected employees (black or African American) in a manner that meets the standards set forth in Teamsters v. United States, 431 U.S. 324 (1977).

152. Defendant FCA is complicit in engaging in a pattern and practice of discrimination, which may be drawn from a consistent failure to respond to complaints or implement corrective measures relating to the discriminatory aspects of the Forced Ranking/Calibration Process.

153. The pattern and practice nature of the discrimination alleged in this case is highlighted by the fact that Senior Management of Defendant FCA was repeatedly informed of the discriminatory nature of certain PLM practices and it has taken the position by its actions that the anti-discrimination laws can be ignored in their pursuit of operational goals.

154. Plaintiffs have experienced all the damages alleged above as a result of Defendant FCA’s pattern and practice of discrimination through use of unlawful aspects of the Forced Ranking/Calibration Process.

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155. If Plaintiff and Plaintiff Class had been of a race other than black or African American, they would not have been treated in the manner described above.

156. As a direct and proximate result of Defendant’s wrongful acts and omissions, Plaintiffs have sustained loss of earnings, earning capacity, and fringe benefits.

WHEREFORE, Plaintiffs request this Court award judgment against Defendant for compensatory damages, which include back pay and related loss of pay resulting from Defendant’s use of the Forced Ranking/Calibration Process, in whatever amount the jury finds necessary, in addition to punitive or exemplary damages plus costs, interest and attorney fees, as allowed under the Act, plus (1) declaratory relief recognizing that Defendant has unlawfully discriminated against the Class based on their race; (2) injunctive relief prohibiting the consideration of race in evaluations and ending the discriminatory pattern or practice and/or policies described herein; and (3) an award of costs, interest and attorney fees.

Respectfully submitted, AKEEL & VALENTINE, PLC /s/: SHEREEF H. AKEEL By: Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam Akeel (P81328) Attorneys for Plaintiffs 888 West Big Beaver Road, Ste. 420 35

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Troy, MI 48084 (248) 269-9595 PITT, MCGEHEE, PALMER & RIVERS, P.C. Michael L. Pitt (P24429) Cary S. McGehee (P42318) Robert W. Palmer (P31704) Beth M. Rivers (P33614) Megan A. Bonanni (P52079) Co-Counsel for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800

Dated: December 20, 2018

CERTIFICATE OF SERVICE The undersigned says that on December 20, 2018 (s)he electronically filed a copy of the following document in the above-captioned matter by filing into the Eastern District Court Website: DOCUMENT(S): Plaintiffs’ Third Amended Class Action Complaint and that same is being served upon counsel of record via the court’s electronic filing and electronic mail notification system as follows: Hasan Kaakarli hasan@akeelvalentine.com Adam Akeel adam@akeelvalentine.com Michael L. Pitt mpitt@pittlawpc.com Megan A. Bonanni mbonanni@pittlawpc.com Robert W. Palmer rpalmer@pittlawpc.com Carey S. McGehee cmcgehee@pittlawpc.com Jerome R. Watson watson@millercanfield.com Misbah Shahid shaid@millercanfield.com

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Respectfully submitted,

Dated: December 20, 2018

AKEEL & VALENTINE, PLC By: /s/: SHEREEF H. AKEEL Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam Akeel (P81328) Attorneys for Plaintiff 888 W. Big Beaver Road, Ste. 420 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com

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