Reply Brief in Support of Defendant's Motion to Dismiss Plaintiffs' Third Amended Complaint and/or t

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

CASE NO. 17-10097

HON. LAURIE J. MICHELSON Plaintiffs, vs.

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

MILLER, CANFIELD, PADDOCK & STONE, P.L.C. 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

PITT, MCGEHEE, PALMER & RIVERS, PC Michael L. Pitt (P24429) Cary S. McGehee (P42318) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Beth M. Rivers (P33614) 117 West Fourth Street, Suite 200 Royal Oak, MI 48067 Tel: 248-398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com brivers@pittlawpc.com

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

Attorneys for Plaintiffs

Attorneys for Defendant

__________________________________________________________________ REPLY BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT AND/OR TO STRIKE CLASS ALLEGATIONS

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TABLE OF CONTENTS I.

PLAINTIFFS’ TITLE VII CLAIMS ARE TIME BARRED.........................1 A.

No Individual Can Piggyback Off Carthens’ Untimely Charge .......... 1

B.

Plaintiffs Cannot Piggyback On Charges Filed By M. Williams Or C. Williams As They Are Not Named Plaintiffs ............................2

II.

PLAINTIFFS FAIL TO ALLEGE A DISPARATE IMPACT CLAIM ........ 3

III.

THE “PATTERN OR PRACTICE” CLAIMS FAIL .....................................7

IV.

V.

A.

Mischaracterized “Statistics” Don’t Meet The Teamsters Standard ................................................................................................7

B.

Plaintiffs Have Not Alleged Individual Claims ...................................9

PLAINTIFFS FAIL TO PLEAD RULE 23 REQUIREMENTS .................11 A.

The TAC Inadequately Alleges Commonality And Typicality .........12

B.

The TAC Does Not Properly Plead Adequacy Of Representation ....................................................................................13

CONCLUSION.............................................................................................14

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TABLE OF AUTHORITIES Page(s)

Cases Adams v. City of Indianapolis, 742 F.3d 720 (7th Cir. 2014) ................................................................................ 6 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..............................................................................................6 Attard v. City of New York, 451 F. App’x 21 (2d Cir. 2011) ............................................................................4 Bell Atlantic Corp. v. Twombly, 500 U.S. 544 (2007) ..............................................................................................6 Bert v. AK Steel Corp., 2006 WL 1071872 (S.D. Ohio Apr. 24, 2006) ..................................................... 2 Bert v. AK Steel Corp., 2007 WL 184746 (S.D. Ohio Jan. 19, 2007) ........................................................ 3 Bryant v. Greater New Haven Transit Dist., 2014 WL 2993754 (D. Conn. July 2, 2014) ......................................................... 4 Burgis v. New York City Dept. of Sanitation, 798 F.3d 63 (2d Cir. 2015) .................................................................................11 Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013) ................................................................................ 3 Dowell v. Rubin, 2000 WL 876767 (6th Cir. June 23, 2000) ........................................................... 2 E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395 (1977) ............................................................................................11 E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000) ............................................................................ 5

ii

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Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) ............................................................................................10 Grano v. Dep’t of Dev. of Columbus, 637 F.2d 1073 (6th Cir. 1980) ..............................................................................8 Henley v. Turner Broad. Sys., Inc., 267 F. Supp. 3d 1341 (N.D. Ga. 2017) ................................................................. 9 Hill v. City of New York, 136 F. Supp. 3d 304 (E.D.N.Y. 2015) ..............................................................8, 9 Howlett v. Holiday Inns, 49 F.3d 189 (6th Cir. 1995) ..................................................................................2 Hunter v. Sec’y of U.S. Army, 565 F.3d 986 (6th Cir. 2009) ................................................................................8 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ..............................................................................7, 8, 10, 11 James v. Metro Gov’t of Nashville, 243 F. App’x 74 (6th Cir. 2007) ........................................................................... 9 Kassman v. KPMG LLP, 2018 WL 6264835 (S.D.N.Y. Nov. 30, 2018)...................................................... 9 Kasten v. Ford Motor Co., 2009 WL 3628012 (E.D. Mich. Oct. 30, 2009) .................................................... 5 Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F. Supp. 2d 886 (E.D. Mich. 2007) .............................................................10 Loreto v. Procter & Gamble Co., 2013 WL 6055401 (S.D. Ohio Nov. 15, 2013) ..................................................11 McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) ........................................................................12, 13 McReynolds v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428 (D.D.C. 2002) ...........................................................................14

iii

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Moreno v. Am. Ass’n of Retired Persons, 2010 WL 2106464 (E.D. Cal. May 25, 2010) ...................................................... 9 Moussouris v. Microsoft Corp., 2018 WL 3328418 (W.D. Wash. June 25, 2018) .........................................12, 13 Oom v. Michaels Cos. Inc., 2017 WL 3048540 (W.D. Mich. July 19, 2017).................................................11 Phillips v. Klassen, 502 F.2d 362 (D.C.Cir. 1974) .............................................................................13 Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) ........................................................................11, 12 Primes v. Reno, 190 F.3d 765 (6th Cir. 1999) ..............................................................................10 Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996) ..................................................................................2 Renaldi v. Mfrs. & Traders Tr. Co., 954 F. Supp. 614 (W.D.N.Y. 1997) ...................................................................... 4 Ross v. Lockheed Martin Corp., 267 F. Supp. 3d 174 (D.D.C. 2017) ....................................................................13 Rupert v. PPG Indus., Inc., 2009 WL 3602021 (W.D. Pa. Oct. 28, 2009) ....................................................... 9 Sauter v. CVS Pharm., Inc., 2014 WL 1814076 (S.D. Ohio May 7, 2014) .....................................................11 Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012) ..............................................................................10 Ste. Marie v. E. R. Ass’n, 650 F.2d 395 (2d Cir. 1981) ................................................................................. 8 Trezza v. Hartford, Inc., 1998 WL 912101 (S.D.N.Y. Dec. 30, 1998) ........................................................ 7

iv

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Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307 (6th Cir. 2007) ................................................................................ 9 Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181 (11th Cir. 2003) ..........................................................................13 Van Poperin v. Hewlett-Packard Co., 2010 WL 2805294 (E.D. Mich. July 15, 2010) .................................................... 6 Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987) ............................................................................14 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ......................................................................................10, 12 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ..............................................................................................5 Welch v. Eli Lilly and Co., 2009 WL 734711 (S.D. Ind. Mar. 18, 2009) ........................................................ 4 West v. The Salvation Army, 2007 WL 1839984 (E.D. Mich. June 27, 2007) ................................................... 7 White v. Baxter Healthcare Corp, 533 F.3d 381 (6th Cir. 2008) ................................................................................9 Zollicoffer v. Gold Standard Baking, Inc., 2018 WL 1920091 (N.D. Ill. Apr. 23) .................................................................. 3 Statutes 42 U.S.C. 2000e-2(j) ..................................................................................................5 42 U.S.C. § 2000e-5(e) ..............................................................................................1 Other Authorities FED. R. CIV. P. 23 .........................................................................................11, 12, 13

v

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I.

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PLAINTIFFS’ TITLE VII CLAIMS ARE TIME BARRED It is indisputable that no current class representative timely filed an EEOC

Charge that exhausted their claims. Plaintiffs ignore this fatal flaw and point to the Court’s Order in a different case with different allegations and claims. Yet, Plaintiffs ignore the Court’s language in this case: “[i]n order to properly exhaust administrative remedies in a Title VII class action, one representative member of the class must bring a timely charge.” Dkt. 37 at 17 (emphasis added).

A.

No Individual Can Piggyback Off Carthens’ Untimely Charge

Carthens, the only current Plaintiff who filed a Charge, is ineligible to represent the putative class because she did not timely exhaust her claims related to any of the PLM ratings at issue here (2014 to present). First, Carthens filed her Charge far more than 300 days after the 2014 and 2015 PLM ratings were issued and they are outside Title VII’s statute of limitations period.1 42 U.S.C. § 2000e5(e). Plaintiffs fail to address this fatal defect, instead arguing, without authority, that purported similarities between Carthens’ Charge and former plaintiff Marlin Williams’ Charge (“M. Williams”) somehow are relevant. 2 Dkt. 60 at 21-22. But, M. Williams’ Charge has no bearing because she is no longer a plaintiff.

1

Carthens filed her Charge on June 26, 2017. Thus, only conduct occurring after August 30, 2016 could possibly be timely (300 days prior to Charge filing date).

2 Even if M. Williams’ Charge could somehow be deemed relevant, she did not receive a 2014 PLM rating and could not have filed a valid Charge as to that year.

Additionally, her March 2017 Charge was untimely as to her 2015 PLM rating.

1

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Second, Plaintiffs admit that Carthens retired one to two months prior to the issuance of the 2016 PLM rating, and thus she cannot have suffered any adverse employment action due to a post-retirement rating. Dkt. 60 at 15, 20; TAC ¶ 5.

Dowell v. Rubin, 2000 WL 876767, at *2 (6th Cir. June 23, 2000) (claim of lessthan-expected performance evaluation without showing of adverse consequence dismissed). 3 Carthens’ time barred Charge cannot be relied on in this action.4 B.

Plaintiffs Cannot Piggyback On Charges Filed By M. Williams Or C. Williams As They Are Not Named Plaintiffs

Plaintiffs concede that a party can only “‘piggyback’ onto a timely-filed charge and notice of right-to-sue letter of a named Plaintiff.” Dkt. 60 at 27 (emphasis added). Neither M. Williams nor C. Williams is a named plaintiff (or even a putative class member) and thus by Plaintiffs’ own admission they are precluded from “piggy backing” on their charges. Plaintiffs’ reliance on Bert v.

AK Steel Corp., 2006 WL 1071872 (S.D. Ohio Apr. 24, 2006) and Howlett v.

Holiday Inns, 49 F.3d 189 (6th Cir. 1995) is misplaced.5 The Bert court, in an order after the one Plaintiffs cited, rejected the plaintiffs’ attempt to combine a 3

Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996) (low performance evaluation and consequent ineligibility for bonus not actionable).

4 No Plaintiff filed a Charge with respect to the 2017 or 2018 PLM ratings and the required exhaustion of administrative remedies never occurred as to those claims.

5 Howlett, 49 F.3d at 194 (“the timely filing of an administrative charge by a named plaintiff in a class action satisfied the charge filing obligation of all members of the class.” (emphasis added)); Bert, 2006 WL 1071872, at *8 (“[P]utative class members need not have filed their own EEOC charge concerning the AK Steel written test so long as the class representative has timely done so.”).

2

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named plaintiff with no claim who filed a charge with a plaintiff who might have had a claim but did not file a charge. Bert v. AK Steel Corp., 2007 WL 184746, at *2 (S.D. Ohio Jan. 19, 2007).

Zollicoffer v. Gold Standard Baking, Inc., 2018 WL 1920091 (N.D. Ill. Apr. 23) is directly on point. There, as of the filing of the sixth amended complaint, none of the original plaintiffs remained and although the original plaintiffs no longer in the action (like M. Williams and C. Williams) “filed EEOC charges regarding their claims in this action, none of the current named plaintiffs [did] so.”

Id. at *1. The court refused to permit the plaintiffs’ Title VII claims to proceed and determined their claims were not exhausted. Id. at *2-3. Plaintiffs here improperly seek to piggyback off Charges filed by individuals whom this Court determined never should have asserted their claims in this or any Court, have been dismissed from this action, and are precluded from being putative class members.

II.

PLAINTIFFS FAIL TO ALLEGE A DISPARATE IMPACT CLAIM Plaintiffs’ Response merely underscores that they failed to satisfy their

burden to identify: (1) a single facially neutral policy, (2) a significant statistical disparity (Plaintiffs’ purported statistics are the subject of a pending motion to strike), or (3) any facts that reflect a causal nexus between the two. See Davis v.

Cintas Corp., 717 F.3d 476, 494 (6th Cir. 2013).

First, Plaintiffs exclusively and mistakenly rely on the Court’s ruling in 3

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Cerjanec v. FCA US, LLC, No. 17-10619 (“Cerjanec”) to support their claim of an alleged facially neutral practice. Cerjanec explicitly asserted class-wide claims of disparate impact discrimination (Cerjanec, Dkt. 37), whereas the TAC alleges both class-wide disparate treatment and disparate impact claims based on the same alleged policies and practices and largely the same facts.6 The same policy cannot constitute both intentional disparate treatment and a predicate for disparate impact. 7 The TAC (unlike the complaint in Cerjanec) alleges a “Forced Ranking Policy” in which managers supposedly used an alleged process of intentional discrimination, not a neutral policy. TAC ¶¶ 52-53, 55; Cerjanec, Dkt. 37. 8 Second, neither the TAC nor Plaintiffs’ Response alleges any statistical disparity supposedly resulting from the alleged challenged process and affecting

6

Plaintiffs do not actually quote the TAC, but attempt to obscure its pleading failures and draw supposed analogies to the Cerjanec Order.

7 Courts have dismissed disparate impact claims where the alleged facially neutral policy was in fact a claim of intentional discrimination that cannot be recast as a disparate impact claim. See, e.g., Renaldi v. Mfrs. & Traders Tr. Co., 954 F. Supp.

614, 620 (W.D.N.Y. 1997) (“[P]laintiff is not alleging that application of a facially neutral policy had a disparate impact, but that [defendant] deliberately singled out older employees for termination or transfer.” (citations omitted)); Welch v. Eli Lilly and Co., 2009 WL 734711, at *9 (S.D. Ind. Mar. 18, 2009) (plaintiffs’ allegations that “supervisors in charge of their individual evaluations and other means of advancement at Lilly discriminated against them on the basis of their race” “raises a discriminatory treatment claim, not a discriminatory impact claim”); Bryant v.

Greater New Haven Transit Dist., 2014 WL 2993754, at *10 (D. Conn. July 2, 2014); Attard v. City of New York, 451 F. App’x 21, 24 (2d Cir. 2011).

8 See Dkt 60 at 32 (“Plaintiffs have alleged that it is during this process where managers are asked to force rank employees, and that during this process managers have access to employees’ photos, their ages, and their ID numbers.”).

4

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either Plaintiffs or the putative class. The purported statistics, which are presently the subject of a motion to strike and have not ever been filed in this case, are not alleged to pertain in any way to the alleged process. They are simply not relevant.

Finally, the TAC wholly fails to plausibly allege that the purported “Forced Ranking/Calibration Process” caused a relevant and statistically significant disparity between African-American and white employees. 9 It is insufficient to simply identify an alleged neutral policy; rather, Plaintiffs must plausibly connect the alleged neutral policy with facts demonstrating that it disproportionately affects African-American employees. 10

See Kasten v. Ford Motor Co., 2009 WL

3628012, at *1, 6 (E.D. Mich. Oct. 30, 2009) (“forced-ranking” allegations insufficient where complaint “identifies the policy which resulted in their severance, but does not explain why forced-ranking procedures disproportionately target older workers” and “states Plaintiffs’ ages, but does not name those who replaced them, or give their ages”). Plaintiffs’ sole allegations about causation are limited to a claim that forced ranking during calibration “caused a disparate impact

9

To hold employers liable for statistical imbalances per se is inconsistent with Title VII. 42 U.S.C. 2000e-2(j). Employers have no affirmative duty to redress workplace imbalances not attributable to their own corporate conduct. Watson v.

Fort Worth Bank & Trust, 487 U.S. 977, 992-93 (1988).

10 E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1276 (11th Cir. 2000) (plaintiff must causally connect a facially neutral policy to an identified disparity, not simply identify “a work force imbalance”).

5

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on African Americans” or created the “result [of] . . . lower scores.” 11 That is not enough for their claims to survive.12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (prohibiting threadbare recitals of elements); Adams v. City of Indianapolis, 742 F.3d 720, 733 (7th Cir. 2014) (affirming dismissal of disparate impact claims pursuant to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Iqbal).13 The TAC is devoid of any of the following: • Any allegation that any Plaintiff’s pre-calibration PLM rating was lowered to a 5 or below or changed in any way as a result of the alleged Forced Ranking/Calibration Process; • Any allegation of firsthand knowledge of the alleged “Forced Ranking/Calibration Process,” including the PLM ratings of AfricanAmerican employees being lowered during or because of it; • Any allegation as to how any single calibration meeting negatively impacted any Plaintiff; • Any explanation as to how calibration meetings are run, how many 11

See TAC ¶¶ 62, 70, 72-80. Plaintiffs’ citations to the order in Cerjanec, which, as noted above, addressed different allegations and claims, are unavailing.

12 In Van Poperin v. Hewlett-Packard Co., 2010 WL 2805294, at *3 (E.D. Mich.

July 15, 2010), this Court held that an allegation a forced ranking system employed by the company “had a disparate impact on the [c]ompany’s older salaried employees considered for separation” was merely “a legal conclusion requiring factual support” and was “not entitled to an assumption of truth.”

13 Plaintiffs’ Response incorrectly describes the issues with the Adams complaint.

As the Court explained: “The far more serious problem is the complete lack of factual content directed at disparate-impact liability.” Adams, 742 F.3d at 733.

The TAC fails for the same reason. There are no allegations about “the racial makeup of the applicant pool as compared to the candidates promoted or as compared to” the company as a whole, about “the racial makeup of the relevant workforce in the” relevant geographic areas, or about the racial makeup of “the supervisory ranks” in the company. Id. 6

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calibration meetings occur, or which employees are compared; • Any allegation that all calibration meetings are conducted in the same manner (which they are not as they involve thousands); • Any allegations about methodologies used or the components of the alleged forced ranking; or • Any allegation about the racial composition of the workforce, including the managers that allegedly utilize the challenged process.

Instead, the TAC offers only a vague framework of the alleged process and assertions that PLM ratings “may” or “could” be changed during calibration. TAC ¶¶ 57, 58, 61. Plaintiffs’ challenge is limited to changes to PLM ratings during calibration because of purported forced ranking. Thus, what is clear is that final PLM ratings (which is all that the TAC discloses) are not proof of causation. As Plaintiffs concede, the initial PLM rating may or may not be the same as the final PLM rating. And, any changes “may” have been for a myriad of reasons. Without something more, there is no plausible claim of causation.14 Accordingly, this Court should dismiss Counts I and IV for failure to allege disparate impact claims.

III.

THE “PATTERN OR PRACTICE” CLAIMS FAIL A.

Mischaracterized “Statistics” Don’t Meet The Teamsters Standard

Plaintiffs’ assertion that statistical evidence alone can satisfy their burden

14

West v. The Salvation Army, 2007 WL 1839984, at *5 (E.D. Mich. June 27, 2007) (dismissing disparate impact claim where no evidence linking policy to any disproportionate result and no rebuttal of the adverse actions explanations); Trezza v. Hartford, Inc., 1998 WL 912101, at *8 (S.D.N.Y. Dec. 30, 1998) (no disparate impact claim because conclusory allegation regarding disparity was insufficient).

7

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under Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) is flatly wrong.

Dkt. 60 at 38; Grano v. Dep’t of Dev. of Columbus, 637 F.2d 1073, 1078 (6th Cir. 1980) (statistics offered were not probative of discrimination). 15 Instead, “the preponderance of evidence must establish “that some form of intentional discrimination against the class of which plaintiff was a member was the company’s standing operating procedure.” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 994 (6th Cir. 2009).

Here, Plaintiffs allege a disparity supposedly as a result of the alleged forced ranking during calibration and rely upon mischaracterizations of alleged stolen purported statistics, which are subject to a pending motion to strike. TAC ¶107; Dkt. 60 at 32; Dkt. 50. But the TAC fails to allege that the stolen purported statistics demonstrate that Plaintiffs were treated differently from any comparable non-African American employee who had similar qualifications, job duties, supervisors, or salary grades due to alleged forced ranking during calibration or based upon a companywide “pattern of discriminatory decision making.”16 At

15

See also Ste. Marie v. E. R. Ass’n, 650 F.2d 395, 401 (2d Cir. 1981) (comparisons to general population have little probative value where special qualifications are required to fill a job).

16 Plaintiffs’ reliance on Hill v. City of New York, 136 F. Supp. 3d 304, 334 (E.D.N.Y. 2015) is misplaced. Although Hill stated that “the initial liability phase focuses on whether plaintiffs have sufficiently alleged class-wide discriminatory policies, rather than allegations of individual discrimination,” that is beside the point. Teamsters places the burden on Plaintiffs to demonstrate “a pattern of discriminatory decision-making.” 431 U.S. at 360. To be “discriminatory,” the 8

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best, Plaintiffs’ characterizations of the purported statistics bear on final PLM ratings, not those changed “as a result of” purported forced ranking during calibration, which is the crux of Plaintiffs’ claims.

Given that performance

evaluations are not an adverse employment action, the purported statistics are not alleged to address any adverse action on either an individual or class-wide basis.17 Plaintiffs cannot rely on “statistics” that do not support their allegations.18 B.

Plaintiffs Have Not Alleged Individual Claims

Plaintiffs do not dispute that a plaintiff who has no viable individual claim cannot adequately represent a class. Henley v. Turner Broad. Sys., Inc., 267 F. Supp. 3d 1341, 1357 (N.D. Ga. 2017). Here, Plaintiffs have not plausibly alleged individual claims of intentional discrimination. Plaintiffs try to overcome this pattern of decisions based upon policies must necessarily result in harm to members of a protected class because of their protected status. Plaintiffs ignore that Hill found that the plaintiffs had demonstrated a specific adverse action existed on a class-wide basis. Hill, 136 F. Supp. 3d at 334.

17 Plaintiffs’ citations to White v. Baxter Healthcare Corp, 533 F.3d 381 (6th Cir. 2008), Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307 (6th Cir. 2007), and James v. Metro Gov’t of Nashville, 243 F. App’x 74 (6th Cir. 2007) are inapposite, as these cases hold that more than a negative performance evaluation is needed to show an adverse action. The alleged “statistics” do not purport to show disparity beyond a final evaluation rating. Plaintiffs are missing the “something more.”

18 Moreno v. Am. Ass’n of Retired Persons, 2010 WL 2106464, at *7 (E.D. Cal. May 25, 2010) is inapposite because the statistics relied upon in that case, unlike here, actually related to the allegations of the plaintiffs. Furthermore, in Kassman v. KPMG LLP, 2018 WL 6264835, at *28 (S.D.N.Y. Nov. 30, 2018), the court actually denied class certification by finding that the statistics were insufficient to show common issues. Lastly, in Rupert v. PPG Indus., Inc., 2009 WL 3602021, at *2 (W.D. Pa. Oct. 28, 2009), the court articulated absolutely no reasoning for its decision finding that plaintiffs had sufficiently pled a pattern or practice claim.

9

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defect by misreading the discussions of the “liability phase” in Teamsters and Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012). Although it is correct that the “liability phase” of the Teamsters framework focuses on whether there is a class-wide policy or practice of discrimination, it clearly does not obviate the requirement that a putative class representative assert a claim. 19 Teamsters did not overrule decades of precedent requiring that named plaintiffs must adequately represent the class, including, crucially, by having pled viable individual claims that support the putative class claims. See, e.g., Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 163 (1982) (denial of promotion due to race did not necessarily make individual an adequate representative of class allegedly refused employment).

Here, it is undisputed that no Plaintiff alleges his/her PLM rating was lowered during calibration, because of alleged forced ranking or any other reason, nor does any Plaintiff allege he/she suffered an individual adverse action. 20 None

19

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351–52 (2011) (holding that, “proof of commonality necessarily overlaps with respondents’ merits contention that Wal–Mart engages in a pattern or practice of discrimination. That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is ‘the reason for a particular employment decision’”).

20 No individual Plaintiff alleges receiving a rating lower than “4” (on scale from 1-9); rather, all Plaintiffs received ratings of “5” between 2015 and 2018, and two only received 5’s. TAC ¶¶ 73-80. “[A] mid-range, performance evaluation…is not the type of adverse employment action contemplated by Title VII” and therefore is not actionable. Primes v. Reno, 190 F.3d 765, 767 (6th Cir. 1999); Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F. Supp. 2d 886, 911 (E.D. Mich. 2007) (denial of discretionary raise not an adverse action). That Plaintiffs concede they received “medium” PLM ratings undercuts their allegations entirely.

10

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of Plaintiffs’ cited cases stand for the proposition that Teamsters allows plaintiffs who do not have a viable individual claim to proceed on a class basis. 21 IV.

PLAINTIFFS FAIL TO PLEAD RULE 23 REQUIREMENTS Plaintiffs’ weak argument that this issue is premature is plainly wrong.

Indeed, the Sixth Circuit’s decision in Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) established that “[a] court may strike class-action allegations before a motion for class certification.” Oom v. Michaels Cos. Inc., 2017 WL 3048540, at *2, 7 (W.D. Mich. July 19, 2017).22 Pilgrim explicitly held that deciding a motion to strike before a motion to certify the class “does not by itself make the court’s decision reversibly premature.” 660 F.3d at 949.

The Court has an obligation to resolve whether the TAC demonstrates that Plaintiffs can meet the requirements for maintaining a class action. See Pilgrim, 660 F.3d at 949; Loreto v. Procter & Gamble Co., 2013 WL 6055401, at *2 (S.D. Ohio Nov. 15, 2013). Plaintiffs do not dispute this rule, but instead argue that Pilgrim is inapplicable because “it was clear from the pleadings” that the plaintiffs could not satisfy Rule 23. Dkt. 60 at 43 n.20. But this case is no different.

Plaintiffs’ allegations clearly cannot establish commonality, typicality, or adequacy

Burgis v. New York City Dept. of Sanitation, 798 F.3d 63, 70 (2d Cir. 2015).

21 E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 405-06 (1977) (where a class has not been certified, the district court did not err in dismissing the class allegations where plaintiffs were not appropriate class representatives).

22 Sauter v. CVS Pharm., Inc., 2014 WL 1814076, at *2 (S.D. Ohio May 7, 2014).

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as required by Rule 23(a), and no amount of discovery can “alter the[se] central defect[s].” Pilgrim, 660 F.3d at 949.

A.

The TAC Inadequately Alleges Commonality And Typicality

Plaintiffs do not disagree they bear the burden to adequately plead commonality and typicality. Their failure to plead commonality pursuant to the Dukes standard is a central defect that prevents class certification requiring the class allegations to be stricken.

Plaintiffs fail to allege facts adequate to

demonstrate that their claims “depend upon a common contention . . . that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350.

The central defect of the TAC’s class claims is highlighted by a recent pair of cases that analyzed similar evaluation systems and held that the plaintiffs could not establish commonality. In Moussouris v. Microsoft Corp., 2018 WL 3328418 (W.D. Wash. June 25, 2018), the plaintiffs challenged a “Calibration Process” similar to that herein, and the court held that commonality could not be established, because “the procedures Microsoft dictates act more as a framework than as constraints on discretion” and concluding plaintiffs did not “identif[y] a common mode of exercising discretion that pervades the entire company.” Id. at *19.23

23

McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th 12

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Similarly, in Ross v. Lockheed Martin Corp., 267 F. Supp. 3d 174 (D.D.C. 2017), which is even more on point, the challenged system provided for “calibration” sessions by managers in order to determine an ‘ultimate tier placement’ for the employees under their supervision.” Id. at 182. The court held that plaintiffs could not establish Rule 23 commonality, reasoning that “to establish the requisite commonality … Plaintiffs needed to demonstrate ‘that all managers would exercise their discretion in a common way[,]’ and they have not done so.” Id. at 198. Here, the performance review process, as alleged, is nothing more than a bare bones “framework” which cannot establish commonality under Rule 23. 24 B.

The TAC Does Not Properly Plead Adequacy Of Representation

Plaintiffs do not deny the “possibility that some class members may have been involved in the forced ranking/calibration process of other class members.”

Dkt. 60 at 44. Potential conflicts of this sort are fatal to the adequacy requirement.

“Class members whose interests are antagonistic in fact, or even ‘potentially conflicting’ with, the interests of the ostensibly representative parties cannot be bound, consistent with the requirements of due process to an adjudication taken in their name.” Phillips v. Klassen, 502 F.2d 362, 366 (D.C.Cir. 1974); Valley Drug Cir. 2012), cited by Plaintiffs, is distinguishable because that case involved mandated practices that usurped the ability of managers to make the decision themselves and the plaintiffs identified companywide polices that required managers to follow the allegedly-discriminatory practice. Id. at 489-90.

24 While Microsoft [and Ross] addressed motions for class certification rather than to dismiss, their analyses of pleading failures are directly applicable here.

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Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003). Contrary to Plaintiffs’ argument, the conflicts are not speculative. Class members are alleged to have ranked and calibrated other class members—the behavior they assert resulted in discrimination. See TAC ¶¶ 6, 12, 15, 18, 21, 24, 42-43, 52-53, 85; Wagner v. Taylor, 836 F.2d 578, 595 (D.C. Cir. 1987) (no adequacy of representation where “supervisors who are members of the proposed class have been responsible for evaluating the performances of other members of the class”). 25 This Court was troubled by the possibility of such conflicts in a different case. Cerjanec, Dkt. 61 at 20. Here, Plaintiffs have admitted that it is a reality.

V.

CONCLUSION FCA US LLC respectfully requests that the Court enter an order dismissing

the TAC in its entirety, and/or striking the class allegations in the TAC, with prejudice.

Dated: April 24, 2019

Respectfully submitted,

/s/ Jerome R. Watson (P27082) Jerome R. Watson Miller, Canfield, Paddock and Stone, P.L.C. 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

25

Plaintiffs’ reliance on McReynolds v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428 (D.D.C. 2002) is misplaced. There plaintiffs did “not allege[] discriminatory treatment by other potential class members with respect to promotions.” Id. at 447.

In addition, contrary to Plaintiffs’ argument, sub-classes cannot cure the inherent conflicts in the TAC. Indeed, Plaintiffs do not even attempt to describe any method for creating subclasses that could even potentially resolve this issue.

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CERTIFICATE OF SERVICE I hereby certify that on April 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 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

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