Defendant's Resp to MTN for Conditional Cert

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2429

Page 1 of 43

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN DAN CERJANEC, RODRIGO BRAVO, MARK MODLIN, and WILLIAM WINFREY, on behalf of themselves and all others similarly situated, Plaintiffs, vs.

Case No:17-10619 HON. LAURIE J. MICHELSON ORAL ARGUMENT REQUESTED

FCA US LLC, Defendant.

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) 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) Beth M. Rivers (P33614) 117 West Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 mpitt@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com Attorneys for Plaintiffs

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 LITTLER MENDELSON, P.C. Daniel E. Turner (Ga. Bar No. 719330) Jacqueline Phipps Polito (NY Bar No. 2582690) Tasha K. Inegbenebor (Ga. Bar. No. 382905) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com Admitted: U.S.D.C. of Michigan on June 23, 2011 jpolito@littler.com Admitted: U.S.D.C. of Michigan on May 18, 2017 tinegbenebor@littler.com Admitted: U.S.D.C. of Michigan on May 11, 2017 Attorneys for Defendant

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION, JUDICIAL NOTICE, AND MOTION TO COMPEL

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2430

Page 2 of 43

TABLE OF CONTENTS PAGE STATEMENT OF ISSUES PRESENTED............................................................ vii STATEMENT OF CONTROLLING/MOST APPROPRIATE AUTHORITY ................................................................................................ix I.

PRELIMINARY STATEMENT ..........................................................1

II.

FACTUAL AND PROCEDURAL BACKGROUND.........................2

III.

PLAINTIFFS DO NOT MEET THE STANDARD FOR CONDITIONAL CERTIFICATION .................................................10

IV.

A.

Plaintiffs Have Failed To Make The Requisite Factual Showing Of A Violation To Which They Are Similarly Situated To Putative Collective Action Members ...................10

B.

The Erroneous Conditional Certification “Factors” Plaintiffs Proposed Are Not Used Or Recognized By The Sixth Circuit .............................................................................16

PLAINTIFFS’ REQUEST FOR CONDITIONAL CERTIFICATION SHOULD BE DENIED FOR NUMEROUS ADDITIONAL REASONS ................................................................22 A.

The Existence Of Class Conflicts And Antagonistic Interests Warrant Denial Of Conditional Certification ............24

B.

Plaintiffs’ Proposed Collective Action Definition Is Vague And Overbroad .............................................................26

C.

The Collective Action Has Not Commenced And Cannot Be Conditionally Certified As Plaintiffs Never Filed Consent Forms .........................................................................28

V.

PLAINTIFFS OFFER NO PROPOSED NOTICE LANGUAGE AND THEIR PROPOSED CONSENT FORM IS UNETHICAL .....................................................................................29

VI.

FCA US SHOULD NOT BE REQUIRED TO PRODUCE THE NON-PARTY EMPLOYEE DATA PLAINTIFFS REQUEST ........31

VII. CONCLUSION ..................................................................................32

i.

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2431

Page 3 of 43

TABLE OF AUTHORITIES Page(s) Cases Anderson v. PF Chang’s China Bistro, Inc., 2017 WL 3616475 (E.D. Mich. Aug. 23, 2017).................................................17 Arceo v. Orta, 296 F. Supp. 3d 818 (N.D. Tex. 2017) ...............................................................29 Bacon v. Eaton Aeroquip, LLC, 2012 WL 6567603 (E.D. Mich. Dec. 17, 2012) .................................................15 Bearden v AAA Auto Club S, Inc., 2013 WL 1181474 (W.D. Tenn. Mar 18, 2013) .................................................15 Biggs v. Quicken Loans, Inc., 2014 WL 12661985 (E.D. Mich. Feb. 19, 2014)................................................32 Bradford v. Logan’s Roadhouse, Inc., 137 F. Supp. 3d 1064 (M.D. Tenn. 2015) ..........................................................31 Calvillo v. Bull Rogers, Inc., 267 F. Supp. 3d 1307 (D.N.M. 2017) .................................................................30 Cason v. Vibra Healthcare, 2011 WL 1659381 (E.D. Mich. May 3, 2011) .............................................12, 15 Church v. Consol. Freightways, Inc., 137 F.R.D. 294 (N.D. Cal. 1991)........................................................................22 Cooper v. Integrity Home Care, Inc., 2017 WL 1628974 (W.D. Mo. May 1, 2017) .....................................................30 Dallas v. Alcatel-Lucent USA, Inc., 2012 WL 424878 (E.D. Mich. Feb. 9, 2012)..........................................11, 12, 21 Demorris v. Rite Way Fence, Inc., 2015 WL 12990483 (E.D. Mich. Mar. 30, 2015) .........................................15, 17 Freeman v. Wal-Mart Stores, Inc., 256 F. Supp.2d 941 (W.D. Ark. 2003) .........................................................15, 20 ii

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

TABLE OF AUTHORITIES (CONTINUED)

PageID.2432

Page 4 of 43

PAGE

Frye v. Baptist Mem’l Hosp., Inc., 495 F. App’x 669 (6th Cir. 2012) .......................................................................28 Gaffers v. Kelly Servs., Inc., 203 F.Supp.3d 829 (E.D. Mich. 2016) rev’d and remanded on other grounds, 2018 WL 3863422 (6th Cir. Aug. 15, 2018)........................11, 17 Geiger v. Tower Auto., 579 F.3d 614 (6th Cir. 2009) ..............................................................................21 Gragg v. Somerset Technical Coll., 373 F.3d 763 (6th Cir. 2004) ..............................................................................21 Harkins v. Riverboat Servs., Inc., 385 F.3d 1099 (7th Cir. 2004) ............................................................................28 Hayes v. XPO Last Mile, Inc., 2017 WL 4918004 (W.D. Mich. Aug. 25, 2017) ...............................................23 Heath v. Google Inc., 215 F. Supp. 3d 844 (N.D. Cal. 2016) ................................................................15 Holmes v. Kelly Servs. USA, LLC, 2017 WL 3381415 (E.D. Mich. Aug. 7, 2017).............................................13, 23 Huang v. Gateway Hotel Holdings, 248 F.R.D. 225 (E.D. Mo. 2008) ........................................................................30 Hyman v. First Union Corp., 980 F. Supp. 38 (D.D.C. 1997) ...........................................................................22 Hyman v. First Union Corp., 982 F.Supp. 1 (D.C. 1997) ..................................................................................22 Jackson v. New York Tel. Co., 163 F.R.D. 429 (S.D. N.Y. 1995) .......................................................................22

iii

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

TABLE OF AUTHORITIES (CONTINUED)

PageID.2433

Page 5 of 43

PAGE

Karlo v. Pittsburgh Glass Works, LLC, 849 F3d 61 (3d Cir. 2017) ..................................................................................17 Karlo v. Pittsburgh Glass Works, LLC, 880 F.Supp. 2d 629 (W.D. Penn. 2012)..............................................................17 King v. Enter. Rent-A-Car Co., 231 F.R.D. 255 (E.D. Mich. 2004) ...............................................................24, 25 Langlands v. JK & T Wings, Inc., 2016 WL 4073548 (E.D. Mich. Aug. 1, 2016)...................................................19 Lawrence v. Town of Irondequoit, 246 F. Supp. 2d 150 (W.D.N.Y. 2002) ...............................................................15 Lemmon v. Harry & David Operations, Inc., 2016 WL 234854 (S.D. Ohio Jan. 20, 2016) ......................................................31 McKinstry v. Dev. Essential Servs., Inc., 2017 WL 815666 (E.D. Mich. Mar. 2, 2017) .....................................................29 Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978) ............................................................................28 Moussouris v. Microsoft, 2018 WL 3328418 (W.D. Wash. June 25, 2018) .........................................18, 25 Olivo v. GMAC Mortg. Corp., 374 F. Supp. 2d 545 (E.D. Mich. 2004) .............................................................17 Pacheco v. Boar’s Head Provisions Co., 671 F. Supp. 2d 957 (W.D. Mich. 2009) ......................................................15, 16 Pullen v. McDonald’s Corp., 2014 WL 4610296 (E.D. Mich. Sept. 15, 2014) ................................................20 Ritz v. Mike Rory Corp., 2013 WL 1799974 (E.D.N.Y. Apr. 30, 2013) ....................................................30

iv

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

TABLE OF AUTHORITIES (CONTINUED)

PageID.2434

Page 6 of 43

PAGE

Roberts v. Target Corp., 2013 WL 5256867 (W.D. Okla. Sept. 17, 2013) ..........................................14, 15 Rodolico v. Unisys Corp., 199 F.R.D. 468 (E.D. N.Y. 2001) .......................................................................21 Saleh v. Valbin Corp., 297 F. Supp. 3d 1025 (N.D. Cal. 2017) ..............................................................30 Schwed v. Gen. Elec. Co., 159 F.R.D. 373 (N.D. N.Y. 1995) ......................................................................22 Severtson v. Phillips Beverage Co., 137 F.R.D. 264 (D. Minn. 1991) ........................................................................12 Sutka v. Yazaki N. Am. Inc., 2018 WL 1255767 (E.D. Mich. Mar. 12, 2018) ...........................................14, 15 Swinney v. Amcomm Telecomms., Inc., 2013 WL 28063 (E.D. Mich. Jan. 2, 2013) ........................................................13 Taylor v. Pilot Corp., 2016 WL 4524310 (W.D. Tenn. Mar. 3, 2016) ..................................................31 Triggs v. Lowe’s Home Ctrs., Inc., 2014 WL 4162203 (N.D. Ohio Aug. 19, 2014) ..................................................20 Trinh v. JP Morgan Chase & Co., 2008 WL 1860161 (S.D. Cal. Apr. 22, 2008) ....................................................15 Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672 (D. Colo. 1997) .........................................................................22 Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483 (D. Kan. 2004) ..........................................................................22 Woodall v. The Drake Hotel, Inc., 913 F.2d 447 (7th Cir. 1990) ..............................................................................24

v

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

TABLE OF AUTHORITIES (CONTINUED)

PageID.2435

Page 7 of 43

PAGE

Wynn v. Nat’l Broad. Co., 234 F. Supp. 2d 1067 (C.D. Cal. 2002) ..................................................14, 15, 19 Young v. Hobbs Trucking Co., Inc., 2016 WL 3079027 (M.D. Tenn. June 1, 2016) ..................................................31 Statutes 29 U.S.C. § 216(b) ...................................................................................................28 29 U.S.C. § 256(b) ...................................................................................................28

vi

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2436

Page 8 of 43

STATEMENT OF ISSUES PRESENTED 1.

Whether this Court should deny Plaintiffs’ Motion for Conditional

Certification (Dkt. 41), based on the following independent grounds: A.

Plaintiffs have failed to proffer any evidentiary support to meet

even a “modest” factual showing that they are similarly situated to the alleged collective group they seek to represent where Plaintiffs’ declarations only say they “received” Performance and Leadership Management (“PLM”) ratings of 5 or below and make no allegations that their own PLM ratings were lowered during calibration as a result of the alleged forced distribution, which is the theory asserted in the Second Amended Complaint (“SAC”); B.

Plaintiffs cannot satisfy any of the factors that the Sixth Circuit

requires for conditional certification of a purported collective action. Contrary to the unity of interest courts require, Plaintiffs seek to represent employees in hundreds of job positions and business operations, who were supervised by thousands of managers who used their individual discretion in preparing the PLM ratings of proposed putative collective action members; C.

Plaintiffs’ proposed collective action definition is overly vague

and, to the extent comprehensible, includes employees who were not harmed by the processes they seek to challenge, employees who are bound by arbitration agreements that prevent their participation in a collective action, and/or are bound

vii

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2437

Page 9 of 43

to shortened contractual limitations periods (as well as other issues pertaining to the applicable statute of limitations) rendering any collective action unworkable, and barring conditional certification; D.

Plaintiffs’ proposed collective action definition is vague and

imprecise and if accepted would pose insurmountable conflicts within the collective group as well as conflicts of interest for Plaintiffs’ counsel where putative collective action members were also managers who prepared performance reviews for other putative collective action members utilizing the challenged process; E.

Plaintiffs have failed to file consent to join forms necessary to

commence the collective action; they also assert a claim on behalf of an Age Discrimination in Employment Action (“ADEA”) sub-class, which is presently the subject of Defendant’s Motion for Leave to Appeal and Stay (Dkt. 63); and F.

Plaintiffs’ proposed Consent Form is wholly improper and

unethical and their request for private employee data is inappropriate.

viii

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2438

Page 10 of 43

STATEMENT OF CONTROLLING/MOST APPROPRIATE AUTHORITY The controlling or most appropriate authority for the relief sought in this Response includes: • Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th Cir. 2006) • Dallas v. Alcatel-Lucent USA, Inc., 2012 WL 424878 (E.D. Mich. Feb. 9, 2012) • Gaffers v. Kelly Servs., Inc., 203 F.Supp.3d 829 (E.D. Mich. 2016) • Hayes v. XPO Last Mile, Inc., 2017 WL 4918004 (W.D. Mich. Aug. 25, 2017) • Holmes v. Kelly Servs. USA, LLC, 2017 WL 3381415 (E.D. Mich. Aug. 7, 2017) • King v. Enter. Rent-A-Car Co., 231 F.R.D. 255 (E.D. Mich. 2004) • Langlands v. JK & T Wings, Inc., 2016 WL 4073548 (E.D. Mich. Aug. 1, 2016) • Lemmon v. Harry & David Operations, Inc., 2016 WL 234854 (S.D. Ohio Jan. 20, 2016) • McKinstry v. Dev. Essential Servs., Inc., 2017 WL 815666 (E.D. Mich. Mar. 2, 2017) • Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978) • MRPC R. 7.1 • MRPC R. 1.8(g) • Roberts v. Target Corp., 2013 WL 5256867 (W.D. Okla. Sept. 17, 2013) • Sutka v. Yazaki N. Am. Inc., 2018 WL 1255767 (E.D. Mich. Mar. 12, 2018) • Woodall v. The Drake Hotel, Inc., 913 F.2d 447 (7th Cir. 1990) • Wynn v. Nat’l Broad. Co., 234 F. Supp. 2d 1067 (C.D. Cal. 2002) ix

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

I.

PageID.2439

Page 11 of 43

PRELIMINARY STATEMENT Plaintiffs’ allegations are wholly insufficient to support conditional

certification under established precedent of courts in this Circuit and elsewhere.

Plaintiffs’ Conditional Certification Motion (“Motion”) (Dkt. 41) should be denied for a host of independent reasons, including the following: (1) Plaintiffs fail to submit even the required “modest” factual evidence necessary to permit this Court to find that they are similarly situated to one another, much less to the collective group they seek to represent; 1 (2) the “facts” section of Plaintiffs’ Motion is based almost entirely on the bare bones allegations of the SAC, which are inadequate for the relief sought; and (3) Plaintiffs’ declarations merely recite what PLM ratings they “received”—i.e., at no point do they indicate whether their PLM ratings were ever changed from their supervisors’ initial ratings due to alleged use of forced distribution during calibration, which is the foundation of their claims in the SAC, nor do they suggest that other employees are similarly situated.2

1

Plaintiffs also assert a claim on behalf of an ADEA sub-class, which is presently the subject of FCA US’s Motion for Leave to Appeal and Stay. The outcome of this possible appeal could moot the present Motion (Dkt. 63).

2 Despite conceding at the July 11, 2018 hearing that Plaintiffs are not challenging the initial ratings given by managers and are only challenging ratings that are lowered during calibration as a result of forced distribution (Dkt. 62 at 77, 81), Plaintiffs’ proposed collective action definition seeks to include all employees 55 and older during the relevant period who were “subject to” what they describe as “Forced Ranking/Calibration Process or practice” and “received a PLM score of 5 or below.” This is not what they represented to the Court—to say that someone was “subject to” calibration and forced distribution cannot possibly mean that they 1

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2440

Page 12 of 43

Plaintiffs’ Motion should be denied for the further reason that their proposed collective action would contravene Sixth Circuit precedent, would be unmanageable, and would be rife with demonstrable and irreconcilable intra-class conflicts. The proposed collective action would include a mixed-bag of thousands of former and current employees: (1) who have worked in 7 different pay grades, (2) with more than 678 unique job codes/titles, (3) who have worked in 70 different physical locations, (4) and worked in 3 separate Divisions, 28 separate Functional Groups, 259 separate Organizations and 840 Departments, and (5) while working under the supervision of thousands of individual managers who independently use their discretion to decide initial PLM ratings. The collective action also would include thousands of managers at various levels, who may or may not have attended one or more calibration meetings, and may or may not have reviewed, revised, or otherwise contributed to the determination of PLM ratings, including for other putative collective action members. Gautney Decl. 3 ¶¶ 4, 18, 24, 27. This is the antithesis of a viable collective action.

II.

FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs’ SAC alleges, on behalf of themselves and allegedly similarly

received a lowered rating as a result of calibration and alleged forced distribution.

The proposed collective definition is overly broad and unworkable.

3 The Declaration of Zachary Gautney, sworn to on August 18, 2018, submitted herewith as Exhibit 1, shall be referenced as “Gautney Decl. [¶ __].” Mr. Gautney has held various positions with FCA US, including PLM Administrator and Human Resources Generalist. Gautney Decl. ¶ 2.

2

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2441

Page 13 of 43

situated individuals, disparate impact age discrimination in violation of the ADEA (Count I).4 Dkt. 37. In their Motion, Plaintiffs ask the Court to: (1) conditionally certify a collective action of dissimilar individuals with widely differing characteristics based on a factually and legally flawed theory, and (2) authorize sending notice (which Plaintiffs failed to provide) to this ill-defined and unmanageable group of individuals.

FCA US LLC’s (“FCA US”) PLM process is a comprehensive employee performance and leadership evaluation process whereby thousands of FCA US managers exercise their discretion and independent judgment to assess salaried employee performance and leadership qualities. Gautney Decl. ¶¶ 5, 7; Bridges Decl. 5 ¶¶ 8-9. The PLM process is applied broadly and differently among the many different business levels of FCA US. Gautney Decl. ¶ 6. These business levels include 3 separate Divisions (Industrial, Brands and Commercial, 4

Plaintiffs originally improperly pleaded their ADEA claims as a Rule 23 class action, which was dismissed by this Court on December 15, 2017. Dkt. 32 at 20.

Thereafter, on January 22, 2018, Plaintiffs attempted to assert an ADEA collective action but never filed the required written consents to join the alleged collective action, meaning the collective action has never commenced. Accordingly, the applicable statute of limitations for Plaintiffs’ and putative collective action members’ purported ADEA claims must be resolved in order to properly evaluate the potential scope of the putative collective action.

5 The Declaration of Carrie Bridges, sworn to on August 18, 2018, submitted herewith as Exhibit 2, shall be referenced as “Bridges Decl. [¶ __].” Ms. Bridges has held various positions with FCA US, including as Human Resources Business Partner and Performance/Talent Management Manager and currently oversees the administration of the Company’s PLM process for salaried employees on a Company-wide basis. Bridges Decl. ¶ 2.

3

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2442

Page 14 of 43

Corporate), 28 separate Functional Groups within the Divisions, 293 Organizations within the Functional Groups, and 1,443 Departments (each of which reports to one of the 293 separate Organizations).6 Gautney Decl. ¶ 4; Bridges Decl. ¶¶ 4-7.

With thousands of managers across these business levels, there is significant variation in how the components of the PLM process are applied and utilized.7 Gautney Decl. ¶¶ 6, 11; Bridges Decl. ¶¶ 9-10.

The initial PLM ratings are determined by thousands of managers in Departments, Organizations, Functional Groups, and Divisions exercising their individual discretion and independent judgment to assess their direct subordinates’ performance and leadership, and assign ratings as “high,” “medium,” or “low.”

Gautney Decl. ¶ 7. While FCA US provides general guidance on the meaning of the different ratings, an individual manager’s discretionary interpretation of the behaviors being measured and individual interpretation of what is “high,” “medium,” or “low” performance and leadership determine the initial ratings that they provide for their subordinate employees. Gautney Decl. ¶ 7. These ratings 6

Between 2014 and the present, the composition and number of some of the Organizations, Departments, and Functional Groups have changed. Gautney Decl. ¶ 4.

7 As designed and intended to be implemented, the PLM process has eight distinct components: (1) goal setting; (2) development planning; (3) talent review/and succession planning; (4) employees submit goal results; (5) managers complete assessments; (6) calibration meetings at the Department, Organization and Functional Group levels; (7) calibration meetings at the Division level; and (8) providing employees performance feedback. Gautney Decl. ¶ 5; Bridges Decl. ¶ 8.

4

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2443

Page 15 of 43

are then plotted on the PLM nine-box matrix to derive a numerical PLM rating.

Gautney Decl. ¶ 8 & Ex. 1.

A rating of “5” represents “medium” for both

“performance” and “leadership” and indicates that an employee is meeting expectations. Gautney Decl.¶ 8 & Ex. 1; Bridges Decl. ¶ 22.8 After managers provide initial discretionary PLM ratings for their direct subordinates, there are generally differing levels of “calibration meetings.”

Gautney Decl. ¶ 10; Bridges Decl. ¶ 11. The purpose of calibration meetings is to ensure that the metrics used by managers to determine employees’ PLM ratings are consistently and fairly applied, such that, for example, two peers are being held to the same standards.

Gautney Decl. ¶ 10; Bridges Decl. ¶ 11.

Contrary to

Plaintiffs’ unsupported assertions, FCA US does not require forced distribution in the PLM process, including the calibration component.

Gautney Decl. ¶ 19;

Bridges Decl. ¶ 21. In 2016, FCA US made available to managers a training document with a heading explicitly titled “The ‘Forced Distribution’ Myth,” reinforcing that there is no forced distribution and that PLM rating distributions should be based on the performance of the relevant business level. Gautney Decl. ¶ 19, Ex. 2. 9 Indeed, Gautney avers that he has never seen meeting participants in 8

As the PLM process uses a matrix, a higher number does not mean a better rating.

For example, a rating of “6” can be considered better than a rating of “7.” Gautney Decl. ¶ 9. PLMs also include written assessments of various behaviors relating to performance and leadership. Gautney Decl. ¶ 7.

9 The purpose of the training was to reinforce that there would be a natural 5

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2444

Page 16 of 43

any calibration meeting that he attended change a PLM rating in order to meet a forced distribution. Gautney Decl. ¶ 19. Also, contrary to Plaintiffs’ assertions, at some calibration meetings there is no employee information shared other than names and PLM ratings, i.e., no photographs, employee identification numbers, or other age identification information is reviewed. Gautney Decl. ¶¶ 11, 20; Bridges Decl. ¶¶ 13, 24.

The processes for calibration related meetings vary greatly among FCA US’s Divisions, Functional Groups, Organizations, and Departments and are conducted differently, at the discretion of the managers and Human Resources professionals participating in the meetings.10 Gautney Decl. ¶ 11; Bridges Decl. ¶¶ 11-12. For example, (a) the number and types of calibration meetings, if any, covering a set of employees may vary depending on the size of a Department, Organization, or Functional Group; (b) there is no required training or process for how to conduct the calibration meetings; (c) there is no requirement that all, or any particular number of, employees are discussed, i.e., in some calibration meetings, all Department level employees may be discussed while in another only the highest and lowest performers are discussed; and (d) there is no requirement as to what, if distribution of PLM ratings among Departments, Organizations, Functional Groups, Divisions, and even down to specific plants due to that specific business level’s performance. Id. 10 Calibration meeting attendees’ personal interpretation of the meaning of certain behaviors, the PLM ratings, and what is considered “good” performances drives the calibration meetings. Gautney Decl. ¶ 11.

6

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2445

Page 17 of 43

any, materials are provided or shown to participants. Bridges Decl. ¶ 12. 11 In short, no two calibration meetings are the same and how they are conducted is left to the participants’ discretion. Gautney Decl. ¶ 11; Bridges Decl. ¶ 12.

Calibration meetings usually begin at the Department level with Department level managers. Gautney Decl. ¶ 12; Bridges Decl. ¶ 14. Some Departments may elect not to hold any calibration meetings, while others may elect to hold multiple meetings or even informal pre-calibration meetings during which all employees or only some employees are discussed and where PLM ratings can be raised or lowered. Gautney Decl. ¶ 12; Bridges Decl. ¶ 14. Following calibrations at the Department level (if any), there are calibration meetings at the Organizational level wherein the head of the Organization meets with his/her direct reports to discuss their direct reports. Gautney Decl. ¶ 13; Bridges Decl. ¶ 15. Although Department level PLM ratings are sent to the Organization level for general review by the Organization level managers, there is rarely a person-by-person analysis and it is 11

For example, there are calibration meetings where no employee information, other than names and PLM ratings were provided or shown to attendees, meaning no photographs, identification numbers, or other age identifying information is reviewed. Gautney Decl. ¶¶ 11, 20; Bridges Decl. ¶ 13. In some calibration meetings, some participants may review an employee’s internal employment history. Gautney Decl. ¶ 11; Bridges Decl. ¶ 13. The internal employee history may be reviewed to determine things such as an employee’s prior job positions, skills, and/or training received. Gautney Decl. ¶ 11; Bridges Decl. ¶ 13. Many, but not all, internal employee histories include the employee’s photograph taken, for example, for Employee Identification badges. Gautney Decl. ¶ 11; Bridges Decl. ¶ 13.

7

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2446

Page 18 of 43

unlikely for an Organizational level calibration meeting to include an employee in a reporting layer below the direct reports to the Department manager. Gautney Decl. ¶ 13; Bridges Decl. ¶15.

Following calibration at the Organization level, there are calibration meetings at the Functional Group level wherein the head of each Functional Group meets with his/her direct reports to discuss their direct reports. Gautney Decl. ¶ 14; Bridges Decl. ¶ 16. While Organization and Department level ratings are sent to the Functional Group for general review, there again is rarely a person-byperson analysis, and only in unlikely circumstances would a Functional Group calibration meeting include an employee in a reporting layer below those who directly report to the head of the Organization. Gautney Decl. ¶ 14; Bridges Decl. ¶ 16. It is unlikely that members of the putative collective action would be reviewed at a Functional Group level calibration meeting. Gautney Decl. ¶ 14; Bridges Decl. ¶ 16. Following calibration at the Functional Group level, PLM ratings are reported to one of the three Divisions. Gautney Decl. ¶ 15; Bridges Decl. ¶ 17. The three Division level calibration meetings historically are attended

by FCA US’s CEO, the heads of Functional Groups, who are the CEO’s direct reports, and upper level Human Resources professionals. Gautney Decl. ¶ 15; Bridges Decl. ¶ 17. In these meetings, FCA US’s CEO meets with his/her direct reports to discuss their direct reports. Gautney Decl. ¶ 15; Bridges Decl. ¶ 17.

8

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2447

Page 19 of 43

Thus, the vast majority of the discussion of employees focuses on salary band 96 and above (i.e., Directors, Vice Presidents and above).

Gautney Decl. ¶ 15;

Bridges Decl. ¶ 17. In rare cases, Senior Managers (salary band 95) may also be included depending on the Division and Functional Group’s reporting structure.

Id. In other words, it would be an extremely rare exception for a Professional, Mid-Level Professional, or Senior Professional (salary bands 89-94) to be discussed during the Division level calibration meetings. Gautney Decl. ¶ 15; Bridges Decl. ¶ 17. With only one exception, neither Gautney nor Bridges recall any changes being made to the PLM ratings of employees in salary bands 95 and below, i.e., Professional, Mid-Level Professional, Senior Professional, or Senior Manager, during a Division calibration meeting. Gautney Decl. ¶ 15; Bridges Decl. ¶ 17. As such, it would be extremely rare for a putative class member to be discussed in a Division level calibration meeting.

An employee’s PLM rating may be adjusted upward or downward (from her manager’s initial rating) at any time after the initial rating, including, but not limited to, during any calibration pre-meeting (if such occurs) or any of the various calibration meetings wherein the employee is discussed, or it may remain the same throughout the assessment period.12 Gautney Decl. ¶ 18; Bridges Decl. ¶ 20.

12

Some Departments, Organizations, Functional Groups, and Divisions have precalibration meetings, during which managers within those groups informally discuss and potentially revise some employees’ PLM ratings. Gautney Decl. ¶ 17; 9

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2448

Page 20 of 43

However, the different calibration meetings at the Organization, Functional Group, and Division levels generally discuss only the direct reports to the managers participating in the meeting. Gautney Decl. ¶ 16; Bridges Decl. ¶18. As such, the PLM ratings of lower level employees are not likely to be discussed and therefore not lowered or raised at such calibration meetings. Gautney Decl. ¶ 16; Bridges Decl. ¶18. Overall, relatively few employees’ PLM ratings are changed during the calibration process. Gautney Decl. ¶ 18.

PLM ratings may or may not affect employees’ salary level or potential to receive a raise. Gautney Decl. ¶ 21; Bridges Decl. ¶ 23. Likewise, receipt of a certain PLM rating does not guarantee or prohibit an employee from receiving a promotion or transfer. Gautney Decl. ¶ 21; Bridges Decl. ¶ 23. In sum, the PLM process (and calibration meetings in particular) is not a monolithic process but instead merely a framework for FCA US’s managers to use their discretion to evaluate and assess individual employees performing different tasks at different levels within different business functions.

III.

PLAINTIFFS DO NOT MEET CONDITIONAL CERTIFICATION A.

THE

STANDARD

FOR

Plaintiffs Have Failed To Make The Requisite Factual Showing Of A Violation To Which They Are Similarly Situated To Putative Collective Action Members.

Conditional certification of an ADEA disparate impact collective action Bridges Decl. ¶ 19.

10

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2449

Page 21 of 43

under §216(b) of the Fair Labor Standards Act (“FLSA”) requires that: (1) lead plaintiffs “actually be ‘similarly situated’” to the putative collective action members; and (2) the putative collective action members signal in writing their affirmative consent to participate.13 Dallas, 2012 WL 424878, at *4 (quoting Comer, 454 F.3d at 546). The Sixth Circuit recognizes that in evaluating § 216(b) certification, district courts typically “follow a two-stage certification process . . . to determine whether the opt-in plaintiffs and lead plaintiffs are similarly situated.”14 Id. (internal brackets removed). During the first or “notice” stage, “the court determines whether the suit should be ‘conditionally certified’ as a collective action.” Id. Although the Eastern District of Michigan has referred to the required showing as a “modest factual showing,”15 the federal district courts are not the rubber stamp that Plaintiffs claim. “Although the standard for granting conditional 13

Because the ADEA incorporates the FLSA’s procedure for collective actions, the Sixth Circuit looks to FLSA cases for guidance on issues related to certification and de-certification of collective actions. Dallas v. Alcatel-Lucent USA, Inc., 2012 WL 424878, at *3-6 (E.D. Mich. Feb. 9, 2012) (citing Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir. 2006)). All unpublished cases cited are attached in alphabetical order as Exhibit 3.

14 The Sixth Circuit has not defined the term “similarly situated.” Dallas, 2012 WL 424878, at *4.

15 Gaffers v. Kelly Servs., Inc., 203 F.Supp.3d 829, 843 (E.D. Mich. 2016) (granting conditional certification where, unlike here, plaintiffs submitted declarations from six collective action members demonstrating that they were similarly situated and subject to the same adverse employment actions, provided a copy of the policy that caused those violations, and all declarants indicated that they were harmed by that policy) rev’d and remanded on other grounds, 2018 WL 3863422 (6th Cir. Aug. 15, 2018).

11

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2450

Page 22 of 43

certification is lenient, it is not non-existent.” Cason v. Vibra Healthcare, 2011 WL 1659381, at *3 (E.D. Mich. May 3, 2011).

As an initial matter, during the “notice stage,” the named plaintiffs bear the burden of “making a modest factual showing” that they are similarly situated to the potential collective action members and must “demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Dallas, 2012 WL 424878, *4 (citation omitted) (emphasis added); Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991). As the Court recognized in its August 6, 2018 Order, to state a claim for disparate impact under their current theories, Plaintiffs must allege the challenged processes “caused the Plaintiffs to receive scores of five or below.” Dkt. 61 at 8 (emphasis in original).

Plaintiffs must now satisfy an evidentiary burden that supports the claims in the SAC and their allegation that there are similarly situated employees. They wholly fail to do so.

The declarations Plaintiffs submitted fail to establish that any Plaintiff (or other putative collective member) received a PLM rating that was lowered during calibration because of alleged forced distribution—the central theory of their claims. 16 Not one Plaintiff’s declaration alleges that his PLM rating was actually 16

Indeed, the only evidence of record is that there is no forced distribution requirement pertaining to the PLM process. Gautney Decl. ¶ 19; Bridges Decl. ¶ 21.

12

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2451

Page 23 of 43

changed, much less as a result of forced distribution during a calibration meeting.17 Dkt. 41-4. Instead, each declaration only states, “For my PLM ratings, I received [insert ratings and years].” 18 Id. Plaintiffs’ request for conditional certification, supported solely by complaint allegations and painfully threadbare declarations that plainly do not support their claims and theories in the SAC, requires denial as a matter of law.19 17

Plaintiffs’ declarations also do not claim that they have first-hand knowledge about any calibration meeting, the use of purported forced distribution, or that pictures, age, or age-conveying information were used at any, much less all, calibration meetings throughout FCA US from 2014 to 2017. FCA US presents herein contrary evidence as to each such claim. For this reason alone, Plaintiffs’ Motion should be denied. See, e.g., Holmes v. Kelly Servs. USA, LLC, 2017 WL 3381415, at *7-8 (E.D. Mich. Aug. 7, 2017) (granting in part and denying in part motion for FLSA conditional certification because plaintiffs failed to produce evidence that alleged improper conduct was pervasive). In addition, Modlin’s and Cerjanec’s declarations fail to include the referenced attachments.

18 Notably, Plaintiff Winfrey did not submit a declaration and one named plaintiff voluntarily dismissed his claims. Moreover, although the litigation has received substantial media attention, is publicized on Plaintiffs’ counsel’s website, and Plaintiffs’ counsel claims to have more than 100 “class members on deck” (Dkt. 62 at 9-10), there is not a single declaration from a putative collective member.

19 Apparently recognizing their declarations are woefully insufficient, in the “Statement of Facts” and legal argument sections of their Motion, Plaintiffs cite exclusively to the SAC, with only two exceptions, neither of which supports their current disparate impact theory. First, Plaintiffs cite to Ex. D (a purported composite exhibit of the Plaintiffs’ declarations) and simply state Plaintiffs’ ratings for 2014, 2015, and 2016. Dkt. 41 at 24. Second, Plaintiffs reference a declaration signed by a non-party plaintiff in a separate case, who is not a collective action member, regarding non-relevant data that is not filed in this case and is irrelevant to this Motion for numerous other reasons. Id. at 25; infra note 22. Plaintiffs’ reliance on the allegations in the Complaint is insufficient to support conditional certification. Swinney v. Amcomm Telecomms., Inc., 2013 WL 28063, at *9 (E.D. Mich. Jan. 2, 2013) (holding that a plaintiff’s “conclusory allegations” are “not 13

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2452

Page 24 of 43

In Sutka v. Yazaki N. Am. Inc., 2018 WL 1255767, at *9, 12 (E.D. Mich.

Mar. 12, 2018), an FLSA misclassification case, the court denied conditional certification where the plaintiff’s evidence consisted of his own declarations claiming he had “personal knowledge” of other employees’ work hours. The court found these declarations were “insufficient by themselves to justify conditional class certification even under the lenient standard that applies at the notice stage” and were “too conclusory to support the certification of a nationwide class.” Id. at *9. The court went on to note that “courts in this District have not hesitated to deny conditional class certification” where the “evidence proffered by the individual plaintiff or plaintiffs was too conclusory, speculative, or scant to support a finding that the members of the proposed class were similarly situated.” Id. at *8. Similarly, in Wynn v. Nat’l Broad. Co., 234 F. Supp. 2d 1067, 1084 (C.D. Cal. 2002), the district court, presented with facts remarkably similar to those herein, denied conditional certification in an ADEA collective action involving former and current writers for television programming because, among other things, the only similarities among the plaintiffs were that they were writers and over the age of forty—“[t]heir individual skills, work experience, and relationships to the proposed Defendants” were completely varied. Similarly, in Roberts v. Target Corp., the district court denied conditional certification in an ADEA case where, as here, sufficient” for conditional certification).

14

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2453

Page 25 of 43

plaintiffs presented “no evidence of a common denominator that would link any of the alleged acts of discrimination.” 2013 WL 5256867, at *4 (W.D. Okla. Sept.

17, 2013) (emphasis added). 20 Here, as in Roberts, Wynn, and Sutka, Plaintiffs’ declarations are wholly

20

Courts routinely deny conditional certification motions where the lead plaintiffs have not demonstrated they are similarly situated to putative collective action members with respect to the asserted claims. Bearden v AAA Auto Club S, Inc., 2013 WL 1181474, at *7 (W.D. Tenn. Mar 18, 2013) (“[T]here must be a specific factual showing, albeit ‘modest,’ that the theoretical claims of the potential class members share with the named plaintiffs a common theory that the ... classification [or alleged violation of the law] was improperly applied to them.”); Heath v.

Google Inc., 215 F. Supp. 3d 844, 851 (N.D. Cal. 2016) (“[u]nsupported allegations of [ADEA] violations are not sufficient to meet the plaintiffs’ burden”); Lawrence v. Town of Irondequoit, 246 F. Supp. 2d 150, 171 (W.D.N.Y. 2002) (denying certification of ADEA collective action where putative class as defined had no ADEA claim); Freeman v. Wal-Mart Stores, Inc., 256 F. Supp.2d 941, 945 (W.D. Ark. 2003) (plaintiff must submit “substantial allegations of class-wide discrimination” supported by affidavits to show he is similarly situated); Cason, 2011 WL 1659381, at *2 (denying conditional certification because “Plaintiff has not identified any other person” whose rights were violated by the same policy in the same way); Pacheco v. Boar’s Head Provisions Co., 671 F. Supp. 2d 957, 959, 966 (W.D. Mich. 2009) (plaintiffs’ affidavits are insufficient to show a common policy or practice was instituted against all individuals in the putative class); Bacon v. Eaton Aeroquip, LLC, 2012 WL 6567603 (E.D. Mich. Dec. 17, 2012) (denying renewed motion for conditional certification because “conclusory” affidavits asserting that a plaintiff “believe[d] other workers were discriminated against in similar ways” is insufficient to establish plaintiffs are similarly situated); Trinh v.

JP Morgan Chase & Co., 2008 WL 1860161, at *5 (S.D. Cal. Apr. 22, 2008) (denying proposed collective FLSA action where plaintiffs submitted only boilerplate assertions and legal conclusions without actual support); Demorris v.

Rite Way Fence, Inc., 2015 WL 12990483 (E.D. Mich. Mar. 30, 2015) (denying motion for conditional certification where plaintiffs did not present evidence of a common plan or policy that violated the FLSA).

15

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2454

Page 26 of 43

insufficient to support conditional certification.21 The declarants fail to (1) allege they have been adversely affected by the challenged processes; and (2) provide any facts to support their claim that other employees have been harmed by the challenged processes.22 Accordingly, Plaintiffs’ Motion should be denied.

B.

The Erroneous Conditional Certification “Factors” Plaintiffs Proposed Are Not Used Or Recognized By The Sixth Circuit.

Plaintiffs’ Motion is based on factors that simply are inapplicable to the evaluation of conditional certification. See Dkt. 41 at 29.

Contrary to the

assertions in Plaintiffs’ Motion, when evaluating whether potential opt-in plaintiffs are similarly situated for certification purposes, courts in this District consider three non-exhaustive factors: 23 (1) the factual and employment settings of the

21

Plaintiffs’ reference to alleged statistical or “documentary evidence” that is filed under seal in a separate case (Dkt. 41 at 17) is also unavailing because: (a) it admittedly has not been filed in this case and thus is not even properly before the Court for consideration (Dkt. 62 at 9); (b) Plaintiffs have not demonstrated that the “documentary evidence” is credible and prepared by someone with requisite expertise; (c) it relates to the PLM process as a whole and does not relate specifically to the alleged forced distribution or calibration processes that Plaintiffs challenge; and (d) the “documentary evidence” is FCA US’s proprietary information that was improperly obtained by Marlin Williams.

22 Plaintiffs also submitted a declaration from Marlin Williams, a former named Plaintiff in another action alleging different claims and who is not a putative collective member in this case, which also wholly fails to support (a) the allegations in the SAC that PLM ratings were actually lowered because of age as a result of the processes identified in the SAC, (b) the proposed class definition, or (c) that any plaintiff has suffered an adverse action. The declaration also fails to include its referenced attachment. Dkt. 41-5.

23 Some courts in this District have applied these factors during the second stage certification analysis. See, e.g., Pacheco, 671 F. Supp. 2d at 959-60.

16

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2455

Page 27 of 43

individual plaintiffs; (2) the different defenses to which the plaintiffs may be subject on an individual basis; and (3) the degree of fairness and procedural impact of certifying the action as a collective action. 24 Gaffers, 203 F. Supp. 3d at 842-43 (E.D. Mich. 2016) (collecting cases); Karlo v. Pittsburgh Glass Works, LLC, 849 F3d 61, 86 (3d Cir. 2017) (“a district court may determine that [certain] differences are too pronounced for the case to proceed as a collective action.”). 25 All of these 24

In the context of FLSA cases, some courts in this District assess the following factors for the first step of conditional certification: (1) whether potential plaintiffs were identified; (2) whether affidavits of potential plaintiffs were submitted; (3) whether evidence of a widespread discriminatory plan was submitted; and (4) whether as a matter of sound case management a manageable class exists. See, e.g., Anderson v. PF Chang’s China Bistro, Inc., 2017 WL 3616475, at *7 (E.D. Mich. Aug. 23, 2017) (denying a motion that, like here, relied only on two conclusory declarations); Olivo v. GMAC Mortg. Corp., 374 F. Supp. 2d 545, 548 (E.D. Mich. 2004) (FLSA case); Demorris, 2015 WL 12990483, at *3 (FLSA case). Even if these factors were used here, Plaintiffs have not satisfied any of them. As discussed in Section IV.B., Plaintiffs’ collective action definition is exceptionally vague and overbroad and fails to identify a workable collective action. Plaintiffs have not submitted any declarations from putative collective action members. As discussed in Section III.A., Plaintiffs do not even allege their own PLM ratings were changed during calibration because of alleged forced distribution, much less that any other employee’s rating was changed. And, as addressed in Section III.B., the collective action they seek to conditionally certify would be wholly unmanageable and devolve into thousands of individual analyses of PLM ratings.

25 See also Karlo v. Pittsburgh Glass Works, LLC, 880 F.Supp. 2d 629, 644 (W.D. Penn. 2012) (directing courts to consider, on conditional certification, whether plaintiffs: (1) held the same job titles; (2) worked in different locations; (3) experienced discrimination during different time periods and by different decisionmakers; (4) have provided “statistically significant” evidence of age discrimination; (5) alleged similar, though not identical, discriminatory treatment; (6) have sufficiently pled and supported by affidavits, depositions, and the like that defendant’s decision-makers have articulated and manifested a clear intent to purge 17

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2456

Page 28 of 43

factors weigh heavily against granting conditional certification.

As to the first factor, the collective action Plaintiffs seek to conditionally certify would impossibly include thousands of individuals with wholly different work experiences in terms of managers, business levels, pay grades, and the implementation of the PLM process and calibration component of it to them.

Indeed, Plaintiffs only represent four salary bands (92-95) of the seven salary bands (89-95) at issue and, as the collective action is defined, they only work(ed) (a) in 6 unique job codes/titles out of a total of 678 unique job titles, (b) at 2 different physical locations out of the total of at least 70 unique physical locations at issue, (c) in 2 of the 3 Divisions, 4 of the 28 Functional Groups, 6 of the 259 Organizations, and 6 of the 840 Departments that would be at issue in this case.

Gautney Decl. ¶¶ 24-25. Moreover, Plaintiffs only had 7 direct managers who assessed their performance out of the thousands of managers who assessed the performance of putative collective action members and may have participated in calibration meetings during the purported collective action period. Gautney Decl. ¶ 25. 26 These facts alone demonstrate Plaintiffs cannot possibly be considered the defendant; and (7) show that defendant targeted older employees for criticism and built a “paper trail” that would be grounds for their demotion.) All of these factors would weigh against Plaintiffs here.

26 In a case Plaintiffs frequently cited during the motions to dismiss this matter, Moussouris v. Microsoft, 2018 WL 3328418 (W.D. Wash. June 25, 2018), the court recently denied a motion to certify a class of employees based upon similar facts in a disparate impact claim. While that order involved a Rule 23 class under 18

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2457

Page 29 of 43

representative of the thousands of employees they seek to represent.

Moreover, as aptly described above, the PLM process is manifestly individualized among the various Departments, Organizations, Functional Groups, and Divisions. Gautney Decl. ¶¶ 4-22; Bridges Decl. ¶¶ 4-25. Similarly, the method, location, timing, and individuals involved in each calibration meeting and/or informal pre-calibration meeting (if a meeting even occurs), including whether any information about the employees is provided and discussed, varies wildly. Id. Thus, the differences within Plaintiffs’ proposed putative collective group are insurmountable and there is simply no logical way to unify this incongruent group into a collective action. See Wynn, 234 F. Supp. 2d at 1084 (denying conditional certification in an ADEA collective action, in part, because the putative collective action members’ “individual skills, work experience, and relationships to the proposed Defendants” were completely varied); Langlands v.

JK & T Wings, Inc., 2016 WL 4073548, at *3 (E.D. Mich. Aug. 1, 2016) (denying conditional certification because plaintiffs’ declarations were “bare bones” and they did not provide “declarations from anyone who worked as a [same position] nor do they provide declarations from other locations”).

As to the second factor, evaluating Plaintiffs’ and any opt-in plaintiffs’ Title VII, it is a significant holding underscoring the inappropriateness of class or collective treatment of challenges to personnel processes that are employed by disparate managers on a discretionary basis.

19

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2458

Page 30 of 43

claims would require an impracticable string of individualized factual inquiries to determine (1) whether an employee’s initial PLM rating was changed during any of the calibration meetings because of any alleged forced distribution; (2) whether the rating is supported by the employee’s actual work performance, or (3) whether the rating is supported by some other non-age related factor.27 As to the third factor, issuance of notice based on the evidence presented here would violate all notions of fairness to FCA US, causing it to expend substantial resources to defend claims by potentially thousands of employees by evaluating the unique decision-making processes of potentially thousands of managers and supervisors.28 27

Courts deny conditional certification motions where the claims are “fraught with questions requiring distinct proof as to individual plaintiffs.” Triggs v. Lowe’s Home Ctrs., Inc., 2014 WL 4162203, at *6 (N.D. Ohio Aug. 19, 2014) (denying conditional certification and class certification because of “individual questions regarding liability”); Pullen v. McDonald’s Corp., 2014 WL 4610296, at *2 (E.D. Mich. Sept. 15, 2014) (denying conditional certification because the large putative class had varying terms and conditions of employment, different managers and worked at different locations). Conditionally certifying a collective action upon little or no evidence is improper because it wastes judicial resources if the court “only later [] determine[s] that the matter should not proceed as a collective action because the class members are not similarly situated.” Freeman, 256 F. Supp. 2d at 945.

28 To understand how a specific final PLM rating was derived for a specific employee, it would require speaking with that employee’s direct manager(s) during the review year who determined the initial rating and likely participated in at least one calibration related meeting with managers at the same level (and possibly managers at one level above him/her who attended any calibration level meeting discussing that employee’s PLM rating) and the specific Human Resources Business Partner that also attended such meetings. Gautney Decl. ¶ 22; Bridges 20

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2459

Page 31 of 43

Rather than address these established factors, Plaintiffs make up their own, offering “factors” derived from inapplicable reduction in force cases 29 and citing distinguishable authority outside this circuit. Dkt. 41 at 29 n.5. 30 Even if the incorrect “factors” identified by Plaintiffs did apply, many of them weigh against conditional certification.

Thus, there are absolutely no allegations that all

Plaintiffs: (1) suffered “the same adverse action” (2) that was caused by “a single decision, policy, or reduction-in force,” or (3) that the policy was managed on a centralized basis. 31 Moreover, the cases Plaintiffs cited are inapplicable because they involve either decertification after extensive discovery (Rodolico v. Unisys Corp., 199 F.R.D. 468 (E.D. N.Y. 2001)) or involve distinguishable facts and Decl. ¶ 25. As such, determining such information would involve an extensive and far-reaching process that may yield minimal results.

29 Reduction in force cases are distinguishable because they definitively involve a single policy and terminations of all impacted employees, and require “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Gragg v.

Somerset Technical Coll., 373 F.3d 763, 767 (6th Cir. 2004); Geiger v. Tower Auto., 579 F.3d 614, 623 (6th Cir. 2009).

30 While most of the cases in footnote 5 of Plaintiffs’ Motion are cited by this Court in Dallas in support of granting conditional certification, the Court’s analysis was based upon the facts of that case, which are distinguishable from the instant case because plaintiffs in Dallas alleged a specific and detailed common policy or plan that was implemented the same way against, and caused harm to, all class members. 2012 WL 424878, at *5. Plaintiffs there also alleged specific actions that were taken by defendants to adversely affect older workers under the common policy or plan. Id. None of those allegations exist in this case.

31 As noted above, the PLM process and its calibration component involve thousands of varying discretionary decisions and are far from being managed on a centralized basis.

21

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2460

Page 32 of 43

proofs. 32 IV.

PLAINTIFFS’ REQUEST FOR CONDITIONAL CERTIFICATION SHOULD BE DENIED FOR NUMEROUS ADDITIONAL REASONS If Plaintiffs’ Motion were granted, notice would potentially be sent to

hundreds, if not thousands, of individuals who cannot assert a viable claim as a matter of law. The following additional issues prevent conditional certification: (1) there would be significant class conflicts because putative collective action members prepared the PLM ratings of other putative collective action members; (2) the scope of the collective group is not clearly defined in the purported collective action definition; 33 and (3) Plaintiffs have not filed consent to join forms

32

Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 484 (D. Kan. 2004) is distinguishable because, unlike here, plaintiffs alleged “detailed allegations, supported by affidavits, that the putative class members were ‘together the victims of a single decision, policy, or plan.’” At the time of the motion, over 119 plaintiffs had filed opt-in forms and significant discovery had occurred on the “similarly situated” issue. See also Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672 (D. Colo. 1997) (pattern or practice RIF case wherein plaintiffs provided “substantial allegations” that putative class members were “together victims of a single … plan”). Jackson v. New York Tel. Co., 163 F.R.D. 429 (S.D. N.Y. 1995) is inapposite because plaintiffs provided “ample allegations” to create a “solid factual basis” supporting the granting of their motion. Hyman v. First Union Corp., 982 F.Supp. 1 (D.C. 1997) is also irrelevant because all putative class members were terminated based upon a uniformly applied centralized process decided by a “few” individuals. Further, the court later dismissed the case as plaintiffs’ disparate impact claim was not cognizable under the ADEA. Hyman v.

First Union Corp., 980 F. Supp. 38, 46 (D.D.C. 1997). Schwed v. Gen. Elec. Co., 159 F.R.D. 373 (N.D. N.Y. 1995) and Church v. Consol. Freightways, Inc., 137 F.R.D. 294 (N.D. Cal. 1991) are inapposite because they are RIF cases.

33 A determination must also be made as to whether the putative collective action members who agreed to FCA US’s Employee Dispute Resolution Process 22

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2461

Page 33 of 43

and, thus, conditional certification cannot be granted. Sending notice in the face of these significant issues would be inappropriate and would waste the time and resources of the Court and the parties.34 Indeed, in light of these issues and the potential confusion collective and class actions notices create, to facilitate case management, the Court should not resolve Plaintiffs’ request for conditional certification until it determines whether Plaintiffs can proceed with their Rule 23 class action disparate impact claim.

Hayes v. XPO Last Mile, Inc., 2017 WL 4918004, at *1 (W.D. Mich. Aug. 25, 2017) (denying conditional certification where “it will be more efficient and less confusing to consider the collective action and class action issues at the same time” and finding that “the potential for confusion [between opt in and class procedures] amongst prospective plaintiffs is too great”).

All of these threshold issues

regarding the viability and scope of Plaintiffs’ claims are critical issues which should be determined prior to evaluation of conditional certification. (“EDRP”), which prevents participation in class and collective actions, must arbitrate their claims in court (an issue the Court has indicated is applicable in this case, but has not yet determined). Dkt. 62 at 19-20. Although the Court has ruled that the current named Plaintiffs are not bound by an arbitration agreement, more than 1,600 putative collective action members executed post-1995 EDRP employment applications binding them to the EDRP. Gautney Decl. ¶ 26.

34 In Holmes, the court implicitly acknowledged the significant impact a binding arbitration agreement could have on the scope of a putative collective action. 2017 WL 3381415. To this end, while in Holmes the court granted plaintiff’s motion for conditional certification, the court stayed the action pending a ruling by the Supreme Court on the enforceability of class waivers. Id. at *8 & n.7.

23

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

A.

PageID.2462

Page 34 of 43

The Existence Of Class Conflicts And Antagonistic Interests Warrant Denial Of Conditional Certification.

Courts properly deny class and collective treatment when there is evidence of conflicts between and among collective action members. Putative collective action members are entitled to rely upon the collective action representatives and counsel to advance their cause and protect their individual interests, without the existence of adverse interests. Woodall v. The Drake Hotel, Inc., 913 F.2d 447, 451 (7th Cir. 1990) (noting that “[m]any of the policy reasons underlying the requirements of Rule 23(e) are applicable to ADEA class actions”). In Woodall, the Court correctly observed that: Sometimes, however, the interests of the class and class representatives or counsel diverge: the individual interests of the class representative may be antagonistic to the class, or class counsel may be tempted to bargain-away class rights as part of fee arrangement negotiations. Thus, court scrutiny is necessary.

913 F.2d at 451. 35 Moreover, as this Court noted in its August 6, 2018 Order, “‘courts have found that a conflict exists where certain members participated in the very behavior that is being challenged.’” Dkt. 61 at 20 (quoting King v. Enter.

Rent-A-Car Co., 231 F.R.D. 255, 264 (E.D. Mich. 2004)).

In King, 231 F.R.D. at 265, this Court recognized: it is foreseeable that supervisory class members such as [one of the plaintiffs] could legitimately be called to refute allegations of other 35

Woodall noted that ADEA plaintiffs may face conflicts with lead plaintiffs and class counsel just as Rule 23 plaintiffs may. 913 F.2d at 451 n.5.

24

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2463

Page 35 of 43

members and testify that certain actions, such as negative evaluations or decisions not to promote, were for legitimate business reasons.

Inasmuch as such testimony is against the interest of the entire class, it can hardly be viewed as de minimis. (emphasis added). Relying on King, this Court recognized that such a scenario is “concerning and, down the road, may call into question the viability of the class claims.” Dkt. 61 at. 20. “Down the road” is now, as the conflicts actually exist, making Plaintiffs inadequate representatives and the proposed collective action unmanageable. See also Moussouris, 2018 WL 3328418, at *28 (denying a motion for class certification in a Title VII disparate impact gender discrimination class action where named plaintiff “participated in the Calibration Process as a manager” creating an “insurmountable” conflict of interest).

Plaintiffs’ proposed collective action will create significant and unresolvable conflicts among putative members.

Depending on how the collective action

definition is interpreted (“receipt” of a five or below in all calendar years or in any calendar year from 2014 through present), as many as 917 Cerjanec putative collective action members prepared PLM ratings for employees they supervised during the relevant period. Gautney Decl. ¶ 27. Of those 917 Cerjanec putative collective action members, approximately 670 prepared more than 2,400 PLM ratings with ratings of 5 or below for their subordinate employees who were 55 and older, which is an average of more than 600 per year. Id. Based on the PLM process, it is reasonable to assume many of the Cerjanec putative collective action 25

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2464

Page 36 of 43

members who prepared PLM ratings for other Cerjanec putative collective action members also attended at least one calibration meeting regarding the PLM ratings they prepared. Id. Even as to the four Plaintiffs, this is not hypothetical, as Plaintiff Winfrey prepared PLM ratings for three employees over the age of 55 whose PLM ratings were 5 or below and, thus, they are putative collective action members. Id. ¶ 28. To the extent a putative collective action member who rated another putative collective action member contends the rating was proper and based on performance, those individuals will be pitted against each other creating an insurmountable class conflict and conflict for Plaintiffs’ counsel. 36 Conditional certification should be denied on this ground alone.

B.

Plaintiffs’ Proposed Collective Action Definition Is Vague And Overbroad.

Conditional certification is precluded because Plaintiffs’ proposed putative 36

In Williams, et. al v. FCA US LLC, Case No. 17-10097, pending before this Court, Plaintiffs’ counsel represents a separate group of individuals who claim that the “PLM” process has a disparate impact on African Americans. As these cases are in their infancy, it is unclear how Plaintiffs’ Counsel will be able to be an advocate for their clients in both cases. These dueling cases will inevitably pit some Plaintiffs and putative class members against others (e.g., a putative class member may argue that another putative class member or Plaintiff unfairly gave her a low PLM rating based on her race and/or age, or allege that they should have received the same promotion or use one another as comparators, forcing Plaintiffs’ counsel to choose between clients or Plaintiffs in both cases). Again, this is not hypothetical. For example, in 2014, 176 putative collective action members in the Cerjanec lawsuit completed PLM ratings and assessments for purported class members of the Williams Lawsuit, and 68 class members of the Williams Lawsuit completed PLM ratings for Cerjanec putative collective action members of this lawsuit. Gautney Decl. ¶ 29.

26

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2465

Page 37 of 43

collective definition is vague, overbroad, and not consistent with their asserted disparate impact theory.

As an initial matter, the definition would include

employees age 55 or older, who “received” a PLM rating of 5 or lower, regardless of whether their PLM rating was lowered during the alleged “Forced Ranking/Calibration” processes. SAC ¶ 61. Moreover, as written, the proposed definition does not clearly reflect whether it includes individuals who received a PLM rating of 5 or lower in any calendar year from 2014 through present or all of these years.37 It is equally unclear whether a putative collective member must be 55 during the entire review period the PLM rating covered, during only the calibration process, or only at the time the final PLM rating was delivered to the employee. 38 All of these issues must be resolved before the scope of any potential collective group can be determined.

37

At the July 11, 2018 hearing, the Court specifically asked if the collective group would include employees who received a PLM rating of 5 or below in all years.

Dkt. 62 at 90. Although Plaintiffs seemed to respond affirmatively, the answer remains unclear and must be clarified before any determination as to whether notice will be distributed. Id. Otherwise, the putative collective members cannot be ascertained and could include employees who received a score of 5 or below in 2014, but received a 6 or higher in 2015 and 2016, thus disproving the allegations of employees in other years regarding age being a factor in their final PLM rating or in the purported “Forced Ranking and/or Calibration Processes.”

38 The Court should also ascertain whether the claims of putative collective action members who, like Cerjanec, contractually agreed to a six month or 180-day limitations period, are time-barred before the scope of any potential notice can be ascertained. The Court should fully determine whether continuing violations and/or equitable estoppel are applicable here before determining the potential scope of any notice. Dkt. 32 at 16.

27

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

C.

PageID.2466

Page 38 of 43

The Collective Action Has Not Commenced And Cannot Be Conditionally Certified As Plaintiffs Never Filed Consent Forms

The ADEA collective action claims asserted in the SAC have not commenced and cannot be conditionally certified because Plaintiffs failed to file written consents to be parties to the lawsuit as the statute requires. See 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such [representative] action unless he gives his consent in writing to become such a party and such consent is filed . . . .” (emphasis added)); 29 U.S.C. § 256(b). The Sixth Circuit recognized this requirement in Morelock v. NCR Corp., explaining that “[t]he consent requirement of [Section] 216(b)” applies to ADEA claims and holding that any “named plaintiff” that “purports to represent anyone other than himself” must file a written consent. 586 F.2d 1096, 1103 (6th Cir. 1978).39 Plaintiffs clearly assert representative claims under the ADEA (SAC ¶¶ 1, 60-69, 89-99), and those claims have not commenced because they never filed consent forms. 40

39

As such,

The court in Morelock held that the consent requirement of Section 216(b) applies to ADEA claims regardless of the applicability of Section 256, and only released plaintiffs from their consent requirement because the case was “not a representative suit” and the complaint “states a separate cause of action for each named plaintiff.” 586 F.2d at 1103.

40 Plaintiffs’ failure is not cured by their position as named Plaintiffs in the SAC. In Frye v. Baptist Mem’l Hosp., Inc., the Sixth Circuit expressly rejected the argument that “named plaintiffs” were exempt from the written-consent requirements of §§ 216(b) and 256. 495 F. App’x 669, 675-76 (6th Cir. 2012). “It makes no difference that you are named in the complaint” because Section 216(b) “is unambiguous: if you haven’t given your written consent to join the suit, or if you have but it hasn’t been filed with the court, you’re not a party.” Harkins v.

28

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2467

Page 39 of 43

conditional certification cannot be granted and their representative collective action ADEA claims should be dismissed.

V.

PLAINTIFFS OFFER NO PROPOSED NOTICE LANGUAGE AND THEIR PROPOSED CONSENT FORM IS UNETHICAL Although Plaintiffs seek Court approval of a proposed “notice,” they do not

attach a proposed notice to their Motion. Thus, FCA US cannot address the content of the proposed notice and reserves the right to do so if Plaintiffs ever submit a proposed notice to the Court.41 With regard to Plaintiffs’ proposed “Consent Form,” it is defective, misleading, and inherently unethical and should not be approved for a number of reasons: First, the Consent Form is misleading because it states unequivocally that its purpose is to “redress” ADEA “violations” and “threatened violations.”

Such non-neutral language is impermissible and

Riverboat Servs., Inc., 385 F.3d 1099, 1101-02 (7th Cir. 2004) (dismissing 18 named plaintiffs under § 216(b) for failing to commence the action by filing written consent forms). Moreover, although Plaintiffs filed their initial complaint in this matter on February 27, 2017, they did not assert an ADEA collective action claim until the SAC was filed on January 22, 2018. Because they failed to file consent to join forms, Plaintiffs’ and the putative collective action members’ statute of limitations for ADEA claims continues to run. This issue, and others noted herein, must be addressed before the scope of any notice could possibly be determined.

41 Plaintiffs’ request that the as-of-yet unseen “notice” be posted in all of FCA US’s offices is an unreasonable punitive measure designed to unfairly prejudice FCA US in this litigation and interrupt its business operations, and thus must be denied. See McKinstry v. Dev. Essential Servs., Inc., 2017 WL 815666, at *3 (E.D. Mich. Mar. 2, 2017) (refusing to require defendants “to post the Notice in a location where it can be seen by current workers” because “[t]hat requirement is unnecessary and punitive”); Arceo v. Orta, 296 F. Supp. 3d 818, 826-27 (N.D. Tex. 2017) (holding that posting notice was not required).

29

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2468

Page 40 of 43

wholly fails to account for the contested nature of the dispute. See MRPC R. 7.1.

Second, the Consent Form improperly suggests that, for an individual to join the litigation, they must agree not only to representation by Plaintiffs’ Counsel, 42 but to Plaintiffs’ Counsel’s absolute authority to make all decisions regarding the “litigation and settlement.”

Yet, an attorney cannot require an individual to

consent in advance to settlement. See MRPC R. 1.8(g). Further, the Consent Form impermissibly requires individuals to waive their right to separately object to or appeal any “favorable or unfavorable” decision.

Third, and most egregious, the Consent Form inappropriately requires the individual to agree (without limitation) to authorize Plaintiffs’ Counsel to reuse the form in any separate or related litigation. Inclusion of such conditions in a consent form has been consistently rejected. See Saleh v. Valbin Corp., 297 F. Supp. 3d 1025, 1037 (N.D. Cal. 2017) (striking similar language and holding that it was “inappropriate”); Calvillo v. Bull Rogers, Inc., 267 F. Supp. 3d 1307, 1316 (D.N.M. 2017) (striking similar language sua sponte). 43 Finally, the proposed Consent Form includes a collective action definition 42

See, e.g., Ritz v. Mike Rory Corp., 2013 WL 1799974, at *4 (E.D.N.Y. Apr. 30, 2013) (proposed consent form must “prominently advise the potential plaintiffs that they have the option to retain plaintiff’s counsel, but can select any counsel of their choosing”).

43 Cooper v. Integrity Home Care, Inc., 2017 WL 1628974, at *6 (W.D. Mo. May 1, 2017) (striking similar language); Huang v. Gateway Hotel Holdings, 248 F.R.D. 225, 228 (E.D. Mo. 2008) (same).

30

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2469

Page 41 of 43

that is confusing, vague, and overbroad. See supra Section IV.B. For all of these reasons, the Consent Form should not be approved.

VI.

FCA US SHOULD NOT BE REQUIRED TO PRODUCE THE NONPARTY EMPLOYEE DATA PLAINTIFFS REQUEST Setting aside the many reasons why the proposed collective action definition

is vague and unclear and thus the potential notice recipients (and any related data) cannot be ascertained, even if notice were authorized (which it should not be), this Court should deny Plaintiffs’ “Motion to Compel” production of private non-party data (including employment dates, job titles, phone numbers, and email addresses) because such data is not even arguably necessary to send notice. Indeed, courts in the Sixth Circuit commonly deny requests for such intrusive information because such information “provides no benefit to the notice process” and is “inherently private.” Lemmon v. Harry & David Operations, Inc., 2016 WL 234854, at *6 (S.D. Ohio Jan. 20, 2016) (denying production of job titles, rates of pay, reason for termination, and personnel records); Taylor v. Pilot Corp., 2016 WL 4524310, at *6 (W.D. Tenn. Mar. 3, 2016) (denying production of email addresses, telephone numbers and social security numbers).44

Because Plaintiffs’ requests are

unnecessary, overbroad, unduly burdensome, and raise serious privacy concerns, 44

See also Young v. Hobbs Trucking Co., Inc., 2016 WL 3079027, at *3 (M.D. Tenn. June 1, 2016) (denying request to produce dates of employment where plaintiff failed to demonstrate it was necessary to the notice process); Bradford v.

Logan’s Roadhouse, Inc., 137 F. Supp. 3d 1064, 1080 (M.D. Tenn. 2015) (denying production of email addresses, telephone numbers, and social security numbers).

31

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2470

Page 42 of 43

the Court should deny Plaintiffs’ request for production of such data. If the Court grants the present Motion, in order to safeguard the information from abuse, the data should only be produced to a Court appointed third-party administrator vetted by counsel with respect to data security protocols. 45 Moreover, if such information is produced to Plaintiffs’ Counsel, a protective order with strict security protocols and strict parameters governing how the data may be used should be entered.

VII. CONCLUSION For the reasons stated above, FCA US respectfully requests that this Court DENY Plaintiffs’ Conditional Certification Motion.

Dated: August 20, 2018

Respectfully submitted,

Jerome R. Watson (P27082) Miller, Canfield, Paddock and Stone, P.L.C. Attorney for Defendant watson@millercanfield.com

/s/ Daniel E. Turner Daniel E. Turner (Bar #719330) dturner@littler.com LITTLER MENDELSON, P.C. Attorneys for Defendant FCA US LLC

45

This Court has approved “use [of] a third-party distributor.” See Biggs v.

Quicken Loans, Inc., 2014 WL 12661985, at *7 (E.D. Mich. Feb. 19, 2014).

Indeed, once any opt-in period has ended, the administrator can provide Plaintiffs’ counsel with the confidential information of their new clients. However, until that time, the data should reside solely with the administrator.

32

Case 2:17-cv-10619-LJM-EAS ECF No. 66 filed 08/20/18

PageID.2471

Page 43 of 43

CERTIFICATE OF SERVICE I hereby certify that on August 20, 2018, 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 Michael L. Pitt Megan A. Bonanni Robert W. Palmer Carey S. McGehee Beth M. Rivers

shereef@akeelvalentine.com mpitt@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com /s/Daniel E. Turner Daniel E. Turner Littler Mendelson, PLLC Attorney for Defendant 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326.4803 Phone:404.233.0330 dturner@littler.com Ga. Bar No. 719330 Admitted to the Eastern District of Michigan on June 23, 2011

Firmwide:156588227.2 091336.1003

33