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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. Michelson ORAL ARGUMENT REQUESTED

FCA US LLC Defendant. AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) 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, PC Michael L. Pitt (P24429) Cary S. McGehee (P42318) Robert W. Palmer (P31704) Megan A. Bonanni (P52079) Beth M. Rivers (P33614) 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com rpalmer@pittlawpc.com mbonanni@pittlawpc.com brivers@pittlawpc.com

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. Jerome R. Watson (P27082) Brian M. Schwartz (P69018) 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com schwartzb@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 jpolito@littler.com tinegbenebor@littler.com Attorneys for Defendant

Attorneys for Plaintiffs

DEFENDANT’S RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL BRIEF (DKT. 86)

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Table of Contents Page I.

NO PLAINTIFF WAS A PARTY TO THE ADEA COLLECTIVE ACTION UNTIL APRIL 22, 2019 AND THE SAC CANNOT BE DEEMED TO HAVE STARTED UNTIL THEN .........................................1

II.

PLAINTIFFS’ FIRST AMENDED COMPLAINT DID NOT ASSERT AN ADEA COLLECTIVE ACTION ............................................2

III.

NEITHER THE CONTINUING VIOLATIONS DOCTRINE NOR EQUITABLE TOLLING SAVES PLAINTIFFS’ CLAIMS RELATING TO 2014 OR 2015 PLM RATINGS..........................................4

i.

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Table of Authorities Page(s) Cases Baldwin Cnty, Welcome Ctr., 466 U.S. 147 (1984) ..............................................................................................3 Frye v. Baptist Mem’l Hosp., Inc., 495 F. App’x 669 (6th Cir. 2012) .....................................................................1, 2 Harkins v. Riverboat Servs., Inc., 385 F.3d 1099 (7th Cir. 2004) ..........................................................................1, 2 Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978) ..............................................................................1 Munaco v. Bank of Am., 2012 WL 12896386 (E.D. Mich. Feb. 28, 2012).................................................. 3 Robison v. AAA of Michigan, 2011 WL 2271296 (E.D. Mich. June 8, 2011) ..................................................... 5 Setzer v. First Choice Lending Servs., LLC, 2018 WL 7500477 (6th Cir. Sept. 10, 2018) ........................................................ 2 Swinney v. Amcomm Telecomms., Inc., 2013 WL 28063 (E.D. Mich. Jan. 2, 2013) .......................................................... 5 Statutes 29 U.S.C. § 216(b) .................................................................................................1, 2 Rules Fed. R. Civ. P. 8 .........................................................................................................3 Fed. R. Civ. P. 15 .......................................................................................................3

ii.

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I.

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No Plaintiff Was a Party To The ADEA Collective Action Until April 22, 2019 And The SAC Cannot Be Deemed To Have Started Until Then It is undisputed that no Plaintiff filed a consent to join this action until April

22, 2019 and thus, under the explicit terms of the governing statute, no Plaintiff was a party to the Age Discrimination in Employment Act (“ADEA”) collective action until that date. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court.” (emphasis added)). The out-of-circuit cases Plaintiffs cited are inapposite. In this Circuit, ADEA plaintiffs in a representative action must file Section 216(b) written consents to become party-plaintiffs. Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir. 1978). The Sixth Circuit in Morelock ruled that Section 216(b) applies to ADEA claims and expressly held that any “named plaintiff” who “purports to represent anyone other than himself” must file a written consent. Id. (addressing the issue in the context of a nonrepresentative action); see also Frye v. Baptist Mem’l Hosp., Inc., 495 F. App’x 669, 675-76 (6th Cir. 2012) (noting that, even if the written consent requirement may seem redundant, “the [statutory] mandate is clear”); Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101-02 (7th Cir. 2004) (Section 216(b) should be interpreted “literally”; “It makes no difference that you are named in the complaint” because “[t]he statute 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

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court, you’re not a party.”). Plaintiffs inappropriately ask this Court to find that they were parties to the ADEA collective action prior to meeting their statutory requirements. This requires a twisted reading of Section 216(b) that runs contrary to the Sixth Circuit’s holdings. Thus, even without the inclusion of Section 256 within the ADEA, and contrary to Plaintiffs’ argument in their supplemental brief, both Frye and Harkins (although FLSA cases) support a plain language reading of Section 216(b). Thus, because no Plaintiff became a party to this action until April 22, 2019, almost two years after the March 9, 2017 Notice of Right to Sue cited in the SAC, the ADEA collective action claims are time barred. Setzer v. First Choice Lending Servs., LLC, 2018 WL 7500477, at *3 (6th Cir. Sept. 10, 2018). II.

Plaintiffs’ First Amended Complaint Did Not Assert An ADEA Collective Action Contrary to Plaintiffs’ current allegations, their March 2017 First Amended

Complaint (“FAC”) cannot reasonably be construed to have asserted an ADEA collective action. To the contrary, the FAC explicitly and unequivocally only pled an impermissible Rule 23 class action. Dkt. 4 ¶¶ 44, 49, 53, 59. After FCA US LLC (“FCA US”) moved to dismiss the ADEA class action claim because Rule 23 is not available under the ADEA, Plaintiffs conceded that “Rule 23 is inapplicable to class certification procedures under the ADEA” and the Court dismissed the claim. Dkt. 22, Pg ID 489; Dkt. 32, Pg ID 1261-62. In light of their own admission, it is disingenuous for Plaintiffs to assert they simply mislabeled a

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collective action claim. To the contrary, they chose to pursue only a Rule 23 class action and ultimately acquiesced in its dismissal. Plaintiffs’ reliance on Fed. R. Civ. P. 8 in an attempt to save their belated claim is misplaced. Rule 8 does not require courts to afford a plaintiff’s claims an “interpretation beyond that which the Plaintiff himself chose to assert,” and in this instance Plaintiffs explicitly asserted only Rule 23. Munaco v. Bank of Am., 2012 WL 12896386, at *2 (E.D. Mich. Feb. 28, 2012) (“While it is sympathetic to the impact of its Order, the Court is not at liberty to reconstruct Plaintiff’s complaint in order to include counts that Plaintiff chose not to include.”). Plaintiffs’ pursuit of a faulty Rule 23 claim cannot provide a ground for conjuring up a non-existent ADEA collective action claim. Finally, Plaintiffs’ relation-back argument fails because Plaintiffs’ assertion of a Rule 23 ADEA class action could not reasonably be construed to put FCA US on notice of an ADEA collective action. Indeed, prior to the Court dismissing the improperly pled ADEA Rule 23 class action, Plaintiffs did not make this argument and did not plead relation-back in the SAC. Plaintiffs’ reliance on out-of-circuit district court opinions and Baldwin Cnty. Welcome Ctr., 466 U.S. 147 (1984) to support an argument under Rule 15 trying to link their Second Amended Complaint (“SAC”) (Dkt. 37) to the dismissed Rule 23 FAC claims is misplaced, as the claims in the two complaints were different. Id. at 150 n. 3 (noting Rule 15(c) did not apply to plaintiff’s initial filing/right to sue letter). In short, Plaintiffs

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indisputably did not assert an ADEA collective action claim until the SAC was filed on January 22, 2018, and claims based on either the 2014 or 2015 (and possibly some 2016) PLM Ratings are untimely. III.

Neither The Continuing Violations Doctrine Nor Equitable Tolling Saves Plaintiffs’ Claims Relating to 2014 or 2015 PLM Ratings Plaintiffs erroneously try to incorporate prior arguments that their belatedly

pled collective action claims challenging 2014 and 2015 (and potentially some 2016) PLM Ratings could be saved pursuant to the continuing violations doctrine, equitable tolling, and/or the Lilly Ledbetter Act, pointing to their pre-SAC briefs in the context of the application of a six month contractual limitations period to bring claims.

Dkt. 86, Pg ID 3372 (citing generally Dkts. 22, 29).

Although

incorporation of prior briefing is improper as it impermissibly expands their page limits, the arguments are also wrong, as FCA US demonstrated in its earlier responses to Plaintiffs’ briefs. Dkts. 25, 30-1; see also Dkt. 32 (holding that the Ledbetter Fair Pay Act does not apply and there currently is insufficient evidence to demonstrate the continuing violation theory or that equitable estoppel applies). Plaintiffs’ supplemental brief next addresses only one category of continuing violations (“existence of a longstanding discriminatory policy”).

However,

Plaintiffs do not explain how this continuing violation category could possibly save collective action claims that were not filed until January 22, 2018, almost a year after the non-cognizable Rule 23 ADEA claims. Moreover, at the conditional

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certification stage, Plaintiffs must present evidence, not just rely on their complaint. 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 sufficient” for conditional certification). Even if Plaintiffs’ conclusory allegations of the existence of a longstanding discriminatory policy were sufficient, which they are not, Plaintiffs have not sufficiently alleged a timely discriminatory act.1 Dkt. 32, Pg ID 1257; see also Robison v. AAA of Michigan, 2011 WL 2271296, at *3 (E.D. Mich. June 8, 2011) (noting “the audit and evaluation on which Robison relies in part to support her claim are discrete discriminatory acts which resulted in a pay decrease as opposed to discriminatory compensation acts”). No Plaintiff has individually alleged in the SAC, in an EEOC Charge, or even in a declaration supporting the Motion for Conditional Certification that his PLM ratings were lowered because of alleged forced ranking during calibration. To the extent the Court believes the continuing violation doctrine could apply, the Court would first need to determine whether Plaintiffs have provided any factual support for the application of the continuing violation doctrine or equitable estoppel before determining the potential scope of the putative collective action members. Otherwise, notice may issue to a significant number of employees who later would be dismissed, creating undue use of the Court’s and the parties’ resources. 1

Plaintiffs ignore that Cerjanec and some putative collective members agreed to a contractually shortened limitations period the Court previously found to be valid. 5

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Respectfully submitted,

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

/s/Daniel E. Turner (Ga. Bar No. 719330) Littler Mendelson, P.C. Attorney for Defendant 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com

June 24, 2019

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CERTIFICATE OF SERVICE I hereby certify that on June 24, 2019, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to: Shereef H. Akeel Hasan Kaakarli Adam S. 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/Daniel E. Turner (Ga. Bar No. 719330) Littler Mendelson, P.C. Attorney for Defendant 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com

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