Def's Petition for Hearing En Banc

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 1

No. 18-0106 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DAN CERJANEC, RODRIGO BRAVO, MARK MODLIN, and WILLIAM WINFREY, on behalf of themselves and all others similarly situated, Plaintiffs-Respondents, v.

FCA US LLC, Defendant-Petitioner.

On Appeal from the United States District Court for the Eastern District of Michigan District Court Case No. 17-10619 DEFENDANT-PETITIONER’S PETITION FOR REHEARING AND/OR REHEARING EN BANC

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) 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 Attorneys for Defendant-Petitioner

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 2

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES......................................................................... ii I.

STATEMENT PURSUANT TO RULE 35(B)....................................1

II.

STATEMENT OF ISSUES PRESENTED..........................................4

III.

ARGUMENT .......................................................................................4

IV.

A.

The Supreme Court’s O’Connor Decision Did Not Resolve Whether The ADEA Permits Subgroups In Disparate Impact Collective Action Claims ...........................................................4

B.

The Panel Incorrectly Ignored Both The Inter-Circuit Split And Intra-Circuit Divide In Authority...............................................6

C.

O’Connor’s Analysis Cannot Be Reconciled With An ADEA Disparate Impact Framework...................................................11

CONCLUSION ..................................................................................15

i

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 3

TABLE OF AUTHORITIES Page(s) Cases Aldridge v. City of Memphis, 404 F. App’x 29 (6th Cir. 2010) ...........................................................................5 Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990) ................................................................3, 8, 9, 10 Bondurant v. Air Line Pilots Ass’n, 718 F. Supp.2d 836 (E.D. Mich. 2010) ............................................................3, 9 Cerjanec v. FCA US, LLC, 2018 WL 3729063 (E.D. Mich. Aug. 6, 2018).........................................9, 10, 15 In re City of Memphis, 293 F.3d 345 (6th Cir. 2002) ..............................................................................11 Combs v. Int’l Ins. Co., 354 F.3d 568 (6th Cir. 2004) ................................................................................9 Criley v. Delta Air Lines, Inc., 119 F.3d 102 (2d Cir. 1997) .............................................................................2, 7 Crump v. Lafler, 657 F.3d 393 (6th Cir. 2011) ................................................................................9 E.E.O.C. v. McDonnell Douglas Co., 191 F.3d 948 (8th Cir. 1999) ..................................................................2, 7, 8, 14 EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000) ..........................................................................13 Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Kelsey-Hayes Co., 872 F.3d 388 (6th Cir. 2017) ............................................................................3, 7 Johnson v. Metro. Gov. of Nashville, 502 F. App’x 523 (6th Cir. 2012) .......................................................................12 ii

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 4

Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 (3d Cir. 2017) .........................................................................3, 7, 10 Keating v. Harsco Corp., 109 F. App’x 835 (8th Cir. 2004) .........................................................................8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)..............................................................................4, 5, 11, 12 Lawrence v. Town of Irondequoit, 246 F. Supp. 2d 150 (W.D.N.Y. 2002).................................................................7 Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364 (2d Cir. 1989) .....................................................................2, 7, 14 O’Brien v. Caterpillar Inc., 900 F.3d 923 (7th Cir. 2018) ............................................................................3, 7 O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996).....................................................................................passim O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542 (4th Cir. 1995) ..................................................................................5 Smith v. City of Jackson, Miss., 544 U.S. 228 (2005)..........................................................................................2, 6 Smith v. Tennessee Valley Auth., 924 F.2d 1059, 1991 WL 11271 (6th Cir. 1991)....................................3, 8, 9, 10 Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys.

Project, Inc., 135 S. Ct. 2507 (2015)........................................................................................13 United States v. Green, 305 F.3d 422 (6th Cir. 2002) ................................................................................9 United States v. Sutton, 862 F.3d 547 (6th Cir. 2017), cert. denied, 138 S. Ct. 461 (2017) ......................9 Vitols v. Citizens Banking Co., 984 F.2d 168 (6th Cir. 1993) (per curiam) .........................................................10

iii

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 5

Statutes 28 U.S.C. ยง 1292(b) .........................................................................................1, 2, 15 Age Discrimination in Employment Act of 1967.............................................passim Michigan Elliott-Larsen Civil Rights Act, M.C.L. 37.2201, et seq...........................1 Other Authorities 6th Cir. R. 35..............................................................................................................1 Fed. R. App. P. 35................................................................................................1, 16 Fed. R. App. P. 40......................................................................................................1

iv

Case: 18-106

I.

Document: 14-1

Filed: 02/22/2019

Page: 6

STATEMENT PURSUANT TO RULE 35(B) Defendant-Petitioner FCA US LLC (“FCA US” or “Petitioner”) seeks,

pursuant to Federal Rules of Appellate Procedure 35(b) and 40(a) and Sixth Circuit Rule 35, rehearing and/or rehearing en banc of the panel’s Order denying its petition under 28 U.S.C. § 1292(b) for interlocutory appellate review of an issue that the District Court, in its decision certifying its order for review, recognized has split both Circuit Courts and district judges within this Circuit. The panel’s sole reason for denying review was its belief that a 23-year-old Supreme Court decision, O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996), “appears to have” resolved the issue of whether a subgroup of employees 55 and older can pursue collective action disparate impact claims under the Age Discrimination in Employment Act of 1967 (“ADEA”), which protects employees 40 and older.1 To the contrary, multiple Circuit and District Court decisions, recognizing that O’Connor has no bearing on the issue, have held that such

1

Plaintiffs-Respondents (“Plaintiffs”) asserted individual claims of age discrimination and also alleged, on behalf of certain salaried, non-union employees ages 55 and older, disparate impact age discrimination in violation of the ADEA and the Michigan Elliott-Larsen Civil Rights Act, M.C.L. 37.2201, et seq. (“ELCRA”). Second Amended Complaint, R.37 ¶¶ 61-68, 71-75, PageID##133741. Plaintiffs’ “disparate impact” theory rests on allegations that various employment practices included in FCA US LLC’s Performance Leadership and Management Process (“PLM”), an annual comprehensive leadership and performance evaluation process, have a disparate impact on employees ages 55 and older with regard to “career advancements, bonuses, placement on probation, and, in some cases, termination.” Id.; Order, R. 70, PageID#2706.

1

Case: 18-106

Document: 14-1

subgroups are impermissible.

Filed: 02/22/2019

Page: 7

O’Connor involved a single plaintiff and

permissible pleading of disparate treatment claims, and thus did not address the propriety of subgroups of ADEA protected employees in disparate impact collective action cases.

Indeed, O’Connor could not have addressed ADEA

disparate impact claims because the Court did not hold that disparate impact claims were cognizable under the ADEA until nine years after O’Connor, in Smith v. City of Jackson, Miss., 544 U.S. 228, 230 (2005).

The issue presented here does not rely upon the underlying facts of this case and is, therefore, a pure issue of law ripe for interlocutory review under 28 U.S.C. § 1292(b). Additionally, as noted, published decisions after O’Connor in the Second and Eighth Circuits determined that O’Connor did not resolve the issue of the viability of subgroups in ADEA disparate impact collective action cases and held such subgroups are impermissible. Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (citing Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364 (2d Cir. 1989)); E.E.O.C. v. McDonnell Douglas Co., 191 F.3d 948, 951 (8th Cir. 1999). The panel’s Order thus is based on a misreading of O’Connor. It should not prevent this Circuit from giving needed guidance on a significant recurring question of law: does the ADEA permit plaintiffs to create artificial subgroups in disparate impact collective actions, breaking a unitary population of employees aged 40 and over into multiple subgroups for purposes of statistical

2

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 8

analysis? At least two other Circuit Courts have concluded they cannot2 and this question clearly warrants rehearing and/or en banc review.

“An intracircuit split3 accompanied by an inter-circuit divide followed by lack of conformity to a Supreme Court decision normally warrants en banc review.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Kelsey-Hayes Co., 872 F.3d 388, 390 (6th Cir. 2017) (Sutton, J., concurring). O’Connor in no way addresses whether the ADEA permits subgroups of protected employees in ADEA disparate impact collective actions. Moreover, the question is one of exceptional importance, as it involves an issue on which the panel’s decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue, and will affect the viability of collective action claims by purported subgroups in this litigation and others. The panel should reconsider its opinion or this Court should grant rehearing en banc.

2

Other cases finding subgroups invalid pre-O’Connor are: Smith v. Tennessee Valley Auth., 924 F.2d 1059 (table), 1991 WL 11271 (6th Cir. 1991) and Barnes v.

GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990) (questioning the validity). Cases finding subgroups permissible post-O’Connor are O’Brien v. Caterpillar Inc., 900 F.3d 923 (7th Cir. 2018) and Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 (3d Cir. 2017).

3 In Bondurant v. Air Line Pilots Ass’n, 718 F. Supp.2d 836, 843 (E.D. Mich.

2010), the district court determined (without explanation) that ADEA disparate impact subclasses are permissible. Although it cited Barnes, the district court ignored Barnes’ explicit recognition that sub-groups may not apply in disparate impact cases. Bondurant, 718 F. Supp. 2d at 843.

3

Case: 18-106

II.

Document: 14-1

Filed: 02/22/2019

Page: 9

STATEMENT OF ISSUES PRESENTED The Court’s February 8, 2019 Order denying Defendant-Petitioner’s petition

for permission to appeal presents a singular purely legal question that requires review: Whether Defendant-Petitioner’s petition merits rehearing because the panel erred in holding that O’Connor resolved the issue of whether subgroups of protected employees under the ADEA are legally viable in disparate impact collective action cases and because that issue is an important issue on which courts within and outside this Circuit have split.

III.

ARGUMENT A.

The Supreme Court’s O’Connor Decision Did Not Resolve Whether The ADEA Permits Subgroups In Disparate Impact Collective Action Claims

Contrary to the panel’s Order, O’Connor has no applicability to the important and unresolved issue of whether the ADEA permits subgroups in disparate impact collective action claims.

The panel’s statement, without

explanation, that O’Connor is controlling here is incorrect. The sole question presented in O’Connor concerned which “elements must be shown in an ADEA [disparate treatment] case to establish the prima facie case that triggers the employer’s burden of production” within the “basic evidentiary framework set forth in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)].” O’Connor, 517 U.S. at 311. The Court answered that question (holding that a single plaintiff 4

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 10

does not have to demonstrate that he was replaced by an individual under 40), but expressly limited its holding to McDonnell Douglas’ disparate treatment paradigm.4 The Court was careful to explain that its McDonnell Douglas opinion “established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases.” O’Connor, 517 U.S. at 310 (emphasis added). Indeed, the Supreme Court refused to extend the application of its holding to any analysis outside of only one particular type of non-class disparate treatment prima facie analysis.5 Id. at 310 n.1 (unequivocally refusing to include within its holding the Fourth Circuit’s “modified version of the McDonnell Douglas prima facie standard” applied in reduction-in-force cases).

Thus, the panel’s position that disparate impact claims (which are evaluated pursuant to a different prima facie analysis)6 are included within O’Connor’s

4

The Supreme Court’s holding is expressly restricted to its determination that “an ADEA plaintiff [being] replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case.” 517 U.S. at 312 (emphasis added).

5 The Fourth Circuit evaluated O’Connor’s claim under both the traditional McDonnell Douglas prima facie framework and under that Circuit’s modified version of McDonnell Douglas utilized in reduction-in-force cases. O’Connor v.

Consolidated Coin Caterers Corp., 56 F.3d 542, 546 (4th Cir. 1995). As expressly indicated by the Supreme Court, these are the only types of cases the opinion covered.

6 To plead a colorable claim of disparate impact, Plaintiffs must satisfy three criteria: (1) they must identify a specific practice that causes disparate impact on the basis of age, (2) the practice must be facially neutral, and (3) they must plead facts which would make plausible a causal connection between that practice and the alleged impact. Aldridge v. City of Memphis, 404 F. App’x 29, 31 (6th Cir. 5

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 11

holding is incorrect.

The fact that O’Connor cannot be considered a definitive ruling as to pleading of disparate impact ADEA collective actions is underscored by the fact that the Supreme Court did not even hold that disparate impact claims were cognizable under the ADEA until nine years after O’Connor. Smith, 544 U.S. at 230 (“[We] now hold [for the first time] that the ADEA does authorize recovery in ‘disparate-impact’ cases comparable to Griggs.”).

In short, the panel misapplied O’Connor’s holding to this matter. O’Connor does not and cannot be construed as holding that subgroups of employees protected by the ADEA in disparate impact collective action claims are permissible.

B.

The Panel Incorrectly Ignored Both The Inter-Circuit Split And Intra-Circuit Divide In Authority

The panel’s incorrect conclusion that the issue “appears to have been resolved” by O’Connor took no account of the conflicting decisions within and outside this Circuit on the issue of whether subgroups are permissible in an ADEA disparate impact collective action.7

Indeed, these conflicting opinions by

2010).

7 As the District Court expressly recognized, there is “substantial ground for differences in opinion” both within and outside the Sixth Circuit regarding the permissibility of ADEA subgroups in disparate impact collective actions. Order, R. 70, PageID#2709. Such differences exist when: “(1) the question is difficult, novel and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions; (2) the question is difficult and of first impression; (3) a difference of opinion exists within the 6

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 12

themselves merit en banc review. “An intracircuit split accompanied by an intercircuit divide followed by lack of conformity to a Supreme Court decision normally warrants en banc review.” Kelsey-Hayes, 872 F.3d at 390. Both the Eighth Circuit, McDonnell Douglas, 191 F.3d at 951, and the Second Circuit, Lowe., 886 F.2d 1364 and Criley, 119 F.3d 102, have held that ADEA disparate impact collective actions involving subgroups are not permissible. The Third Circuit, Karlo, 849 F.3d at 71, and Seventh Circuit, O’Brien, 900 F.3d at 929, have ruled otherwise.

Notably, since O’Connor, the Second Circuit and district courts in that circuit have repeatedly re-affirmed the inappropriateness of subgroup pleading.

For example, the Second Circuit refused to permit pilot-plaintiffs’ disparate impact claim to proceed because the allegedly improper hiring scheme (which focused on pilots ages 55 and older) “had no negative impact on the overall group of Pan Am pilots aged 40 and older.” Criley, 119 F.3d at 105 (citing Lowe, 886 F.2d at 137273); see also Lawrence v. Town of Irondequoit, 246 F. Supp. 2d 150, 161 n.4 (W.D.N.Y. 2002) (“Clearly, the disparate impact theory of liability cannot apply in this case because some of the very persons plaintiffs allege were treated more favorably, retirees age 55 to 64 and retirees over age 80, are in the protected group

controlling circuit; or (4) the circuits are split on the question.” Id. (citing In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013)). All of these factors exist here.

Id. The panel’s decision does not dispute that each of these factors has been met.

7

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 13

themselves.”).

Likewise, the Eighth Circuit’s post-O’Connor rejection of age-based subgroups in McDonnell Douglas is also persuasive. The Eighth Circuit warned that if plaintiffs were permitted to assert subgroup claims, they could proceed with an action despite a favorable statistical impact on the entire protected class, and “the consequence would be to require an employer engaging in a RIF to attempt what might well be impossible: to achieve statistical parity among the virtually infinite number of age subgroups in its work force.” McDonnell Douglas Co., 191 F.3d at 951; see also Keating v. Harsco Corp., 109 F. App’x 835, 837 (8th Cir. 2004) (citing McDonnell Douglas, 191 F.3d at 951).

Also notably absent from the panel’s opinion is any recognition of the Sixth Circuit’s prior panel decisions in either Barnes or Smith—which invalidated and/or questioned the legal viability of subgroups in ADEA disparate impact cases.

Barnes, 896 F.2d 1457; Smith, 1991 WL 11271.

In both its Opinion on

Petitioner’s Motion to Dismiss and its Order certifying the ADEA subclass issue, the District Court recognized that the Sixth Circuit panel in Barnes indicated and the panel in Smith held that the ADEA does not permit disparate impact claims on behalf of subgroups: In Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990), the Sixth Circuit held that “[a]n employer violates ADEA when preference is given to a younger employee even if the younger employee is within the protected 8

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 14

class of persons age 40-and-over.” And though a footnote to that sentence read that “such sub-group analysis may not apply to discriminatory impact cases” id. at 1466 n. 12, the reasoning in Barnes is consistent with the Supreme Court’s decision in O’Connor [v.

Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)].

A year later, in Smith, a panel of the Sixth Circuit held that “[a] plaintiff cannot succeed under a disparate impact theory by showing that younger members of the protected class were preferred over older members of the protected class.” Smith v. Tennessee Valley Authority, 924 F.2d 1059 (table), 1991 WL 11271 at *3–4 (6th Cir. 1991). . . . And Barnes did not hold that subgroups are not permissible in a disparate impact claim; it just flagged that it may not be.

Cerjanec v. FCA US, LLC, 2018 WL 3729063, at *5 (E.D. Mich. Aug. 6, 2018) (emphasis added);8 see also Order, R. 70, PageID##2709-10.

Nevertheless, the District Court noted that a district court decision in this Circuit, Bondurant,9 found, contrary to Barnes and Smith, such subclasses

8

While unpublished opinions in the Sixth Circuit are not binding, they are “‘instructive’ or helpful” to district courts resolving matters of law, and their reasoning should be viewed that way. Crump v. Lafler, 657 F.3d 393, 405 (6th Cir. 2011); Combs v. Int’l Ins. Co., 354 F.3d 568, 593 (6th Cir. 2004). The Sixth Circuit and district courts have repeatedly looked to, and even relied upon, unpublished Sixth Circuit opinions on issues where there is no in-circuit published opinion and/or there is a circuit split on the same issue. See, e.g., United States v.

Green, 305 F.3d 422, 436-37 (6th Cir. 2002); United States v. Sutton, 862 F.3d 547, 558 (6th Cir. 2017), cert. denied, 138 S. Ct. 461 (2017).

9 The district court in Bondurant did not explain its reason for determining that ADEA disparate impact subgroups are permissible. Instead, it simply cited Barnes, while ignoring Barnes’ explicit recognition that there is a distinction between the theories supporting disparate treatment and disparate impact cases such that sub-group analysis may not apply to disparate impact cases. Bondurant, 718 F. Supp. 2d at 843.

9

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 15

permissible and decided to follow its reasoning. Cerjanec, 2018 WL 3729063, at *5. The District Court explicitly acknowledged, however, that there is “a circuit split and that the Sixth Circuit has not definitively ruled on the propriety of subclasses in ADEA disparate impact cases . . . .” Order, R. 70, PageID#2706.

In the absence of any other supportive Sixth Circuit authority, the District Court relied on the Third Circuit’s decision in Karlo, 849 F.3d 61, in permitting Plaintiffs’ class claims to go forward, further reflecting the absence of conclusive authority within this Circuit. Order, R. 70, PageID#2707. While the panel’s decision stated (without citing any additional authority) that this issue “appears to have been previously resolved” by O’Connor (Panel Order, R. 13-2, Page 1), neither the District Court nor the Second and Eighth Circuits have concurred.

Petitioner seeks a rehearing and/or en banc review to obtain Sixth Circuit guidance on the legal question of whether, as this Court has previously twice reasoned in Barnes and Smith, subclasses are prohibited in this Circuit in ADEA disparate impact collective actions. Without a conclusive Sixth Circuit published opinion on this issue, the state of the law in this Circuit remains unclear and merits final resolution through rehearing and/or en banc review.

Finally, “immediate appeal would materially advance the ultimate termination of the litigation.” Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993) (per curiam) (citing Cardwell v. Chesapeake & Ohio Ry. Co., 504

10

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 16

F.2d 444, 446 (6th Cir. 1974)). As the District Court noted in its Order Granting Motion to Certify Issue for Interlocutory Appeal, “should the Sixth Circuit find that age subgroups are impermissible, Plaintiffs’ ADEA collective action disparate impact would be dismissed” and their state law class action claim could also be dismissed. Order, R. 70, PageID#2711. As the District Court also correctly recognized, “[i]t would be a waste of resources for the parties to engage in extensive, costly, and time-consuming class action discovery on a claim or claims that may ultimately be dismissed.” Id. at PageID#2711. A decision on this disputed issue would materially advance the resolution of this purported nationwide ADEA collective and Michigan class action litigation. Thus, resolution through rehearing and/or en banc review is necessary and a matter of exceptional importance.10 C.

O’Connor’s Analysis Cannot Be Reconciled With An ADEA Disparate Impact Framework

The panel’s decision overlooked that O’Connor was confined to an analysis of the McDonnell Douglas disparate treatment burden of proof for a prima facie 10

Further, the District Court noted that if Plaintiffs’ Motion for Conditional Certification is mooted because ADEA subgroups are not permitted, a ruling on the Motion for Conditional Certification would not be necessary, preventing the distribution of costly and inappropriate nationwide collective-action notices regarding a claim that does not exist in this Circuit. Order, R. 70, PageID#2711.

As the District Court correctly observed, the ADEA subclass question is most certainly a controlling issue of law. See Order, R. 70, PageId##2708-09; In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002) (“A legal issue is controlling if it could materially affect the outcome of the case.”).

11

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 17

case, which is distinct from the prima facie burden of proof in disparate impact claims (which requires evidence of a facially neutral practice). These distinctions are crucial to why O’Connor has no bearing on the viability of subgroup pleading in ADEA disparate impact cases. It is one thing for a court to hold – as O’Connor did – that in claiming intentional age discrimination, a plaintiff can compare his or her treatment to that of a younger individual even if that individual is over 40. It is another thing altogether to say that plaintiffs seeking to create collective action disparate impact cases can conjure up subgroups of individuals for statistical disparate impact analysis, without any issue of intent being relevant. While the McDonnell Douglas framework considered by O’Connor is pertinent to intentional age discrimination, the statistics-based framework of a disparate impact claim is different. This distinction is critical because O’Connor’s rationale for permitting an ADEA disparate treatment plaintiff to pursue his claim by comparing his treatment to the intentional treatment of another, younger individual protected by the ADEA simply cannot, on its face, be employed in the disparate impact arena.11 Indeed, the Supreme Court in O’Connor acknowledged concerns that its holding could allow cases to proceed where there is an insignificant age difference 11

It is undisputed that disparate impact claims cannot rest upon an allegation of intentional discrimination. Johnson v. Metro. Gov. of Nashville, 502 F. App’x 523, 542 (6th Cir. 2012) (plaintiff’s disparate impact claim was properly dismissed where plaintiff alleged employer ignored objective criteria “because of an intent to discriminate” because “this type of allegation was more akin to a disparate treatment claim than it was to a disparate impact claim”).

12

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 18

between comparators. 517 U.S. at 312–13. This focus on intent is not relevant to an ADEA disparate impact collective action.

Rather, the central issue in a

disparate impact case is whether plaintiffs can causally connect a specific faciallyneutral practice to an identified disparate impact on the entire protected group.

EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1276 (11th Cir. 2000). “[P]laintiff[s] who fail[] to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact” and such a case should be dismissed. Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2523 (2015).

Contrary to the scenario described in O’Connor, individual decisions based on intentional conduct have no bearing on the purported collective action and are not relevant in determining whether a prima facie case has been met as to a disparate impact claim.

Here, Plaintiffs identify a purported subgroup that would result in the comparison of individuals with an insignificant age difference (those over the age of 55 with anyone 54 and younger).12 The sound reasons for not permitting ADEA

12

See, e.g., Second Amended Complaint, R. 37 ¶ 47, PageID##1334-35 (“Upon information and belief, on a company-wide basis, and as a result of the Forced Ranking/Calibration Process, salaried, non-union employees under the age of 55 with job titles of Senior Manager to Professional disproportionately receive higher PLM Scores and consequently higher compensation, bonuses, and other benefits than salaried, non-union employees ages 55 and older, including the Class Representatives.” (emphasis in original)); see also Hearing Transcript, R. 62, 13

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 19

disparate impact subgroups are aptly laid out in Lowe (Second Circuit), McDonnell Douglas (Eighth Circuit), and their progeny. In Lowe, for example, the Second Circuit explicitly noted and rejected the legal gamesmanship that would occur were plaintiffs permitted arbitrarily to carve up age-related data within the protected class to support their theory of discrimination. The Second Circuit determined that the appropriate and logical method is to focus on whether the challenged conduct had a disparate impact on the entire protected class (individuals 40 and over).

Lowe, 886 F.2d at 1374 (“If appellants’ approach were to be followed, an 85 year old plaintiff could seek to prove a discrimination claim by showing that a hiring practice caused a disparate impact on the ‘sub-group’ of those age 85 and above, even though all those hired were in their late seventies.”).

Unlike a single plaintiff disparate treatment case in which a court compares the plaintiff’s treatment to one comparator or even a small number of identified comparators, granting plaintiffs in a collective action permission to manipulate statistical data based on arbitrary (and possibly fluctuating) subgroups would impose a virtually impossible burden on employers. McDonnell Douglas, 191 F.3d at 951. The panel’s decision, which would allow this misplaced theory to proceed, warrants rehearing and/or en banc review.

PageID#2260 (“THE COURT: But I think it's fair to say on these pleadings, the way you pled this, that [FCA US’ counsel’s] argument is a fair one. That you’re going to be comparing some 54-year-olds and some 55-year-olds because your class, your subclass is 55 and above. [Plaintiffs’ Counsel] MR. AKEEL: Right.”).

14

Case: 18-106

IV.

Document: 14-1

Filed: 02/22/2019

Page: 20

CONCLUSION The Court should grant rehearing and/or rehearing en banc, grant

interlocutory appeal under 28 U.S.C. § 1292(b), and reverse the decision of the District Court denying Petitioner’s motion to dismiss Plaintiffs’ ADEA disparate impact claim.

Dated: February 22, 2019

Respectfully submitted, MILLER, CANFIELD, PADDOCK & STONE, PLC /s/ Jerome R. Watson 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) 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 Attorneys for Defendant-Petitioner FCA US LLC

15

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 21

CERTIFICATE OF COMPLIANCE WITH RULE 5 AND 32(C) Pursuant to Fed. R. of App. P. 32(g) and 6th Cir. R. 32(a), the undersigned certifies that this petition complies with the type-volume limitation of Fed. R. App. P. 35(b)(2)A) because this petition contains 3,791 words, excluding the parts of the petition exempted by Fed. R. App. P. 32(f) and 6th Cir. R. 32(b)(1). This petition also complies with the typeface and style requirements of Fed. R. App. P. 32(a)(4)(6) and 27(d)(1)(D)-(E) because this petition has been prepared in a proportionately spaced typeface using Microsoft Office Word 2010 in Times New Roman 14 point typestyle using appropriate margins.

Dated: February 22, 2019 /s/ Jerome R. Watson Jerome R. Watson (P27082) M. Misbah Shahid (P73450) MILLER, CANFIELD, PADDOCK & STONE, PLC 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) 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 Attorneys for Defendant-Petitioner 16

Case: 18-106

Document: 14-1

Filed: 02/22/2019

Page: 22

CERTIFICATE OF SERVICE I hereby certify that on February 22, 2019, I electronically filed the foregoing DEFENDANT-PETITIONER’S PETITION FOR REHEARING

AND/OR REHEARING EN BANC with the Clerk of the Court using the ECF system pursuant to 6 Cir. R. 5, which will send notification of such filing to Plaintiff-Appellants as follows. I also caused the foregoing papers to be emailed to counsel of record as follows: Shereef H. Akeel Hasan Kaakarli Adam Akeel Michael L. Pitt Megan A. Bonanni Robert W. Palmer Carey S. McGehee Beth M. Rivers

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

/s/ Jerome R. Watson Jerome R. Watson (P27082) MILLER, CANFIELD, PADDOCK & STONE, PLC 150 W. Jefferson Ave., Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com Attorneys for Defendant-Petitioner 33063647.1\155704-00007

17