2019_6-17 Plaintiff's Supplemental Brief

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DAN CERJANEC, RODRIGO BRAVO, MARK MODLIN, and WILLIAM WINFREY, on behalf of themselves and all others similarly situated, Plaintiffs,

Case No. 17-10619

vs

Hon. Laurie J. Michaelson

FCA US LLC,

CLASS ACTION

Defendant.

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) Attorneys for Plaintiff 888 W. Big Beaver Road, Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com

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

PITT, MCGEHEE, PALMER & RIVERS Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Carey S. McGehee (P42318) Beth M. Rivers (P33614) Attorneys for Plaintiffs 117 W. Fourth Street, Ste. 200 Royal Oak, MI 48067

LITTLER MENDELSON, P.C. Tasha K. Inegbenebor (GA 382905) Daniel E. Turner (GA 719330) Attorneys for Defendant 3344 Peachtree Rd. NE, Ste. 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com tinegbenebor@litller.com

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(248) 398-9800 rpalmer@pittlawpc.com mbonanni@pittlawpc.com brivers@pittlawpc.com PLAINTIFFS’ SUPPLEMENTAL BRIEF NOW COMES Plaintiffs, DAN CERJANEC, RODRIGO BRAVO, MARK MODLIN, WILLIAM WINFREY, and GLENN LUKAS, by and through their attorneys, AKEEL & VALENTINE, PLC, and PITT, MCGEHEE, PALMER, AND RIVERS, and hereby submits their Supplemental Brief, pursuant to this Honorable Court’s November 9, 2017 Order, in response to Defendant’s Motion to Compel Arbitration; Motion to Dismiss; and/or Motion to Strike Class Allegations in the First Amended Complaint. For the reasons stated below, as well as in their Response to Defendant’s instant motion and oral arguments, Plaintiffs respectfully request that this Honorable Court DENY Defendant’s Motion in its entirety.

Respectfully submitted, AKEEL & VALENTINE, PLC By: /s/: Shereef H. Akeel SHEREEF H. AKEEL (P54345) HASAN KAAKARLI (P81099) ADAM S. AKEEL (P81328) Attorneys for Plaintiff 888 West Big Beaver Road, Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com ii

Case 2:17-cv-10619-LJM-EAS ECF No. 87 filed 06/18/19

Dated: November 16, 2017

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adam@akeelvalentine.com

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DAN CERJANEC, RODRIGO BRAVO, MARK MODLIN, and WILLIAM WINFREY, on behalf of themselves and all others similarly situated, Plaintiffs,

Case No. 17-10619

vs

Hon. Laurie J. Michaelson CLASS ACTION

FCA US LLC, Defendant.

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) Attorneys for Plaintiff 888 W. Big Beaver Road, Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com PITT, MCGEHEE, PALMER & RIVERS Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Carey S. McGehee (P42318) Attorneys for Plaintiff iv

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

LITTLER MENDELSON, P.C. Tasha K. Inegbenebor (GA 382905) Daniel E. Turner (GA 719330) Attorneys for Defendant 3344 Peachtree Rd. NE, Ste. 1500 Atlanta, GA 30326

Case 2:17-cv-10619-LJM-EAS ECF No. 87 filed 06/18/19

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

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(404) 233-0330 dturner@littler.com tinegbenebor@littler.com

mpitt@pittlawpc.com PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR SUPPLEMENTAL BRIEF

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TABLE OF CONTENTS TABLE OF AUTHORITIES………………………………………………………vi INTRODUCTION AND PROCEDURAL HISTORY…………………………….1 APPLICABLE FACTS……………………………………………………………..1 A. Plaintiff Dan Cerjanec……………………………………………………….1 B. The Remaining Class Reps Received Bonus Checks in 2017………………2 APPLICABLE LAW AND ARGUMENT…………………………………………3 A. Statute of Limitations Provision is Unenforceable………………………….3 B. Even if the SOL was Enforceable, Each New Bonus Check Reset the 180day Time Limit to Render Claims Timely…………………………………..3

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TABLE OF AUTHORITIES Cases

Greenleaf v. DTG Operations, Inc., No. 2:09-CV-192, 2011 WL 883022 (S.D. Ohio Mar. 11, 2011) ..........................5 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) ................................................................................................4 Lewis v. Harper Hosp., 241 F. Supp. 2d 769 (E.D. Mich. 2002) .................................................................6 Tarmas v. Sec’y of Navy, 433 Fed.Appx. 754 (11th Cir.2011)........................................................................4 Statutes

42 U.S.C. § 2000e-5(e) ..............................................................................................4 42 U.S.C. § 2000e-5(e)(B) .........................................................................................5

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INTRODUCTION AND PROCEDURAL HISTORY On November 9, 2017, this Honorable Court invited the parties for additional briefings as to the 180-day Statute of Limitation (“SOL”). (Dkt. #28).

The Court only referenced Plaintiffs Cerjanec and Lukas for discussion.1 APPLICABLE FACTS A. Plaintiff Dan Cerjanec.

In 1994, Cerjanec was hired by Defendant and signed the attached application. Exh. A – App. Notably, the application only includes SOL language, but no reference to an Employee Dispute Resolution Program (“EDRP”). Fast forward to early 2015, Cerjanec was rated a five (5) for his 2014 PLM review, and received the corresponding bonus compensation in 2015. In early 2016, Cerjanec received a four (4) for his 2015 PLM review, and related lower payment.2 And in February 2017, Cerjanec received an abysmal one (1) for his 2016 PLM. Exh. B – Cerjanec 2014, 2015, and 2016 PLM Reviews.

Prior to receiving the low rating of a “1” for the 2016 year, Cerjanec was never advised that his performance did not meet expectations. Still, Defendant fired Cerjanec on February 21, 2017. Exh. C – Cerjanec Dec. Defendant then 1

Recently, Plaintiff Lukas indicated to Plaintiffs’ Counsel that his work conditions have improved drastically since filing this lawsuit, and Defendant dropped his Performance Improvement Plan (“PIP”) given to him following his wrongful low rating. As such, Plaintiff Lukas has elected to withdraw as a Class Representative.

2 As averred by Marlin Williams, compensation or a bonus payment for a “4” is less than a bonus payment for a “5”. Exh. D – Marlin Dec. 1

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offered Cerjanec a severance agreement releasing all claims against it in exchange for paying Cerjanec his already earned 2016 PLM bonus corresponding with a rating of a “1”. Exh. E – Severance, p. 2 (referencing PLM payment). Cerjanec refused because he believed that Defendant’s bonus payment was discriminatory.

Exh. C – Cerjanec Dec. Less than one week after his termination, on February 27, 2017, Cerjanec filed this instant representative action for age discrimination. On March 1, 2017, Cerjanec filed a Charge with the EEOC in a representative capacity and received a Right to Sue letter on March 9, 2017. Exh. F – Charge/Letter.3 B. The Remaining Class Reps Received Bonus Checks in 2017.

Although other Plaintiffs are not referenced in this Honorable Court’s November 9 Order and do not have applications with the 180 SOL time limit to bind them, it is still important to highlight relevant facts to the SOL issue.

Plaintiff, Rodrigo Bravo, was hired by Defendant in 1986 and continues to work there. Exh. G – Bravo Dec. Bravo received a five, four, and two for his 2014, 2015, and 2016 PLMs, respectively. Exh. G – Bravo Dec. To show a pattern of when bonus payments are made, Bravo received his 2016 PLM compensation or bonus payment check the following year in March 2017. Exh. H – Bravo Paystub.

Plaintiff, Mark Modlin, was hired in 1988. Modlin received a five, one, and one for his 2014, 2015, and 2016 PLMs, respectively, before being terminated in 3

In the interest of judicial economy, the Parties entered into a Tolling Agreement, tolling the SOL for all applicable putative class members and their respective claims. (Exh. I – Tolling).

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January 2017. Exh. J – Modlin Dec. Like Bravo, Modlin also received his reduced 2016 PLM bonus compensation for his low “1” 2016 rating the following year (two months after his termination) on March 31, 2017. Exh. K – Modlin Paystub.

Importantly, and contrary to Defendant’s counsel’s representations that the PLM reviews process is not a standard review process, as there are allegedly “different” organizations involved, Modlin received his 2014 PLM payment the following year on March 20, 2015 with a letter signed by FCA’s Chief Executive Officer, Sergio Marchionne – from one organization (FCA) – highlighting the company-wide policy central to Plaintiffs’ claims. Exh. L – Marchionne Letter.

APPLICABLE LAW AND ARGUMENT A. Statute of Limitations Provision is Unenforceable.

Plaintiffs rely on their Response to Defendant’s Initial Motion (Dkt. #17); specifically, the two binding Sixth Circuit Ryan’s Family Steak Houses cases (also discussed in the related Williams [Dkt. #25]), for the proposition that Cerjanec’s application lacked a Mutuality of Obligation component to bind him.4 B. Even if the SOL was Enforceable, Each New Bonus Check Reset the 180-day Time Limit to Render Claims Timely.

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As discussed on pages 7-15 of the Cerjanec Response (Dkt. #17) and pages 8-16 of the Williams Response (Dkt. #25), while it is claimed that Plaintiffs were obligated to the six month SOL term, the Defendant had no obligation to review their Applications – similar to the Ryan’s Family Steak Houses cases. As discussed, Defendant conflated the concepts of Consideration (reviewing the application) with Mutuality of Obligation (where FCA had no obligation to review prospective employee Applications).

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In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act (“FPA”) in response to the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), overturned due to legislative action (Jan. 29, 2009). A scorching dissenting opinion by the Honorable Justice Ginsberg sparked legislative action, and the FPA was enacted. This Act amends Title VII, and the ADEA, by adding the following provision: For purposes of this section, an unlawful employment practice occurs, … when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

42 U.S.C. § 2000e-5(e) (emphasis added). As a result of the enactment of the FPA, the SOL is reset 180 days after every discriminatory check or compensation (i.e. bonus) is paid, and not when the decision to implement the practice (i.e. the Calibration Process) was made.5 42 U.S.C. § 2000e-5(e); see also Tarmas v. Sec’y of Navy, 433 Fed.Appx. 754, 760 (11th Cir.2011).6 Importantly, this new statutory provision also provides for a two-year window of back pay, which, here, covers

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In Michigan, the 180-day limit is extended to 300 days since the state of Michigan has a Michigan Department of Civil Rights. For those states that have a state enforcement agency, the 180-day limit is extended to 300 days. Exh. M – EEOC Reference.

6 See also EEOC discussion on FPA application to Title VII and ADEA claims. Exh. N. 4

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the 2014 to 2016 bonus payments in the instant case, as discussed below. 42 U.S.C. § 2000e-5(e)(B).

Within Sixth Circuit jurisdiction, a federal court held that performancebased pay evaluations, among other things, are encompassed in the words “other practice” in the FPA. Greenleaf v. DTG Operations, Inc., No. 2:09-CV-192, 2011 WL 883022, at *2 (S.D. Ohio Mar. 11, 2011). Under the FPA, each discriminatory paycheck, “wages, benefits, or other compensation” paid resulting from a discriminatory practice resets the 180-day limit to file a claim. Exh. O – Summary Table.

Here, the FPA makes all of Cerjanec’s – and others similarly situated – claims timely when considering the two-year backpay window, allowed under the Act, in addition to 300 days allowed to file a charge in Michigan.7 Cerjanec refused to accept his discriminatory Bonus payment offered by FCA on or around February 21, 2017, resetting the 300-day time limit under federal law to file an ADEA claim to December 18, 2017. Further, under the FPA, the two year back pay window would include the payments made in 2016 (for 2015 PLM year) and

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For example, the 2014 PLM discriminatory bonus payments were made the following year in March 2015 (see Exh. K – Modlin Paystub), which is within two years Plaintiffs’ instant lawsuit was filed in February 2017.

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2015 (for 2014), rendering those years timely. Also, this instant suit was filed in the same month Cerjanec was fired, further rendering his claim timely.8

Respectfully submitted, AKEEL & VALENTINE, PLC

Dated: November 16, 2017

By: /s/: Shereef H. Akeel SHEREEF H. AKEEL (P54345) HASAN KAAKARLI (P81099) ADAM S. AKEEL (P81328) Attorneys for Plaintiff 888 West Big Beaver Road, Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com PROOF OF SERVICE

The undersigned certifies that on the 16th day of November 2017, (s)he served the foregoing document upon counsel of record via the court electronic filing and mail notification system. /s/: Miki Thornton

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Contrary to Defendant’s representation that you are basically “out of luck“ if the 180-day contractually shortened SOL expires, the EEOC 300 day time period to file a charge trumps Defendant’s 180 day clause. See Lewis v. Harper Hosp., 241 F. Supp. 2d 769 (E.D. Mich.

2002).

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