MEMORANDUM OPINION
Pending before the Court is the “Plaintiffs’ Motion for Conditional Class Certification and Court Facilitated Notice” (“the motion”). (Docket No. 88). The motion is ripe for adjudication. For the following reasons, Plaintiffs’ motion for conditional certification (Docket No. 88) is GRANTED, in part, in accord with the following.
I. Introduction
This action is brought by named Plaintiffs Richard Csukas, Jeffrey Marietti, Mark K. McLure, Benjamin D. Thompson, Rudolph A. Karlo, David Meixelsberger and William S. Cunningham (“Plaintiffs”) and against Pittsburgh Glass Works, LLC (“PGW” or “Defendant”). The Plaintiffs’ claims arise from a March 2009 reduction in force (“RIF”). (Docket No. 54 at ¶ 103). This RIF resulted in the termination of each of the named Plaintiffs. Plaintiffs claim that the RIF was conducted in a manner giving rise to an inference of age discrimination.
Their Amended Complaint (Docket No. 54) raises three counts. Count I claims disparate treatment under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. (Id. at 36-37). Count II alleges disparate impact. (Id. at 38-39). Finally, Count III claims retaliation under the ADEA. (Id. at 39-41).
a. The Parties
PGW is a limited liability corporation whose business was owned by PPG Industries, Inc. (“PPG”) until late 2008. (Dock
Karlo began working for PPG on October 9, 1978. (Id. at ¶ 24). McLure began working at PPG in 1974. (Id. at ¶ 32). Cunningham began his career with PPG in April 1996. (Id. at ¶ 41). Marietti was hired in 1984. (Id. at ¶ 47). Meixelsberger was hired in 1987. (Id. at ¶ 54). Thompson was brought in as a part-time employee in 1971, his position was terminated in 1972, and he was rehired on a permanent basis in 1972. (Id. at ¶¶ 60-61). Csukas started with PPG in 1973. (Id. at ¶ 76).
b. The Formation of PGW
PGW was formed on October 1, 2008, when the auto glass businesses of PPG Industries, Inc. were spun off to create a new company. (Docket No. 104-1 at ¶ 3). One of PGWs core businesses is the production of automotive glass, such as windshields, rear windows and side windows to car manufacturers as an original equipment manufacturer (“OEM”). (Id. at ¶ 5).
Around the time PGW was formed, General Motors, Ford and Chrysler appeared before Congress to request bailout funds. (Docket No. 104-2). Due to the downturn in the economy, PGW took drastic steps to “combat rapidly deteriorating sales”, including the closure of two Canadian facilities and one Michigan facility. (Docket No. 106 at 4; see generally Docket No. 104-3). Between 2008 and 2009, North American vehicle production took a precipitous dive. (Docket No. 104-4 at 1 (stating that car sales in 2009 would be “an eighteen (18) year low”)). Several of the named plaintiffs acknowledge the downturn in the economy. (See Docket No. 106 at 6 (citing depositions of Plaintiffs Csukas, Cunningham, McLure and Meixelsberger)). PGW maintains that the economic downturn led to an initial RIF in late 2008. (Docket No. 104-3 at 2).
c. The March 2009 RIF
Tony Hartmann, PGW’s Vice President of Human Resources, departed from the company in late 2008. (Docket No. 106 at 7). Kevin Cooney was brought in to replace him on an interim basis. (Id.). Cooney worked on a reorganization plan in which each business unit director in the company identified the work that needed to be done and the personnel that were necessary to perform that work. (Id. (citing Docket No. 104-12 at 47)).
The First Amended Complaint alleges that all of the Representative Plaintiffs were terminated over a two-day period in March 2009. (Docket No. 54 at ¶ 103). Mr. Csukas was terminated by Dave King, a PGW supervisor at the Evansville, Indiana facility. (Id. at ¶¶ 104-107; Docket No. 73 at ¶¶ 104-107 (admitting that Mr. Csukas was terminated)). On March 31, 2009, Mr. Thompson was informed of his termination by the Creighton Plant Manager, Craig Barnett, and Human Resources Manager, Myrtle Smith. (Docket
A total of 105 salaried employees were terminated in the 2009 RIF. (Docket No. 106 at 6). In performing the RIF, upper management relied upon the individual directors of each unit to determine which employees must be retained and which might be terminated. (Id. at 7; Docket No. 104-12 at 47, 71-72). The criteria used in the RIF revolved around the work that was done in each unit, and the “[education, background, breadth of experience, and so forth.” (Docket No. 104-12 at 72).
d. Procedural History
Plaintiffs’ motion was filed on October 3, 2011. (Docket No. 88). The parties’ initial briefs on the motion are filed at Docket Numbers 91, 106, 113 and 126. On November 10, 2011, Defendant filed a motion for summary judgment concurrently with its response to the present motion. (See Docket No. 101). Defendant’s Appendix (Docket No. 104) is referenced both in the motion for summary judgment and in its filings pertaining to the currently-pending motion.
On December 19, 2011, the Court convened a motion hearing on Plaintiffs’ motion for conditional certification, at which time the Court heard argument and then ordered the parties to file additional briefing on the issue of the Court’s consideration of expert testimony at the conditional certification stage. (Docket Nos. 131-132). The parties then filed their supplemental briefs on January 4, 2012. (Docket Nos. 135,136).
Shortly thereafter, on January 13, 2012, the parties filed a joint motion to stay the Court’s consideration of the pending motion while the parties participated in mediation. (Docket No. 141). This motion was granted on January 17, 2012. (Docket No. 145). On February 3, 2012, the Court received a report from the mediator indicating that the case had not settled. (Docket No. 149). The parties then filed additional supplemental citations to authority. (Docket Nos. 154, 158). The Court held a second motion hearing on March 9, 2012 (Docket No. 161) and received the transcript of that hearing on April 23, 2012. (Docket No. 176).
II. Legal Standard
Through the pending motion, Plaintiffs seek conditional certification of their collective ADEA claim and court-facilitated notice of same. Pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”), which is incorporated into the ADEA via Section 7(b) of that Act, potential plaintiffs must opt in to a collective action suit and affirmatively notify the court of their intentions to join the suit. Sperling v. Hoffmann-La Roche Inc.,
Courts typically follow a two-tiered analysis in determining whether a case may move forward as a collective action. The first phase, or “notice” phase, requires that a court “make[] a preliminary determination whether the employees enumerated in the complaint can be provisionally categorized as similarly situated to the named plaintiff.” Symczyk v. Genesis Healthcare Corp.,
Until recently, there was a split amongst the district courts within the Third Circuit as to the necessary showing at the notice stage. See Symczyk,
Applying the “modest factual showing” standard, a moving plaintiff must demonstrate “a sufficient factual basis on which a reasonable inference could be made that defendant! ] orchestrated or implemented a single decision, policy or plan to discriminate against their ... employees on the basis of age.” Mueller,
III. Discussion
Plaintiffs define their proposed collective class as all “employees who were, at any time from on or about March 31, 2009: a) 50 years of age or older; b) Who was employed by PGW; c) A member of the salaried workforce; and d) Terminated from employment with PGW by the RIF implemented on March 31, 2009.”
The ADEA protects against discrimination those who are forty years old and older. See 29 U.S.C. § 631 (defining the protected class as “limited to individuals who are at least 40 years of age.”). Plaintiffs have attempted to define their class as a subgroup of this class: they seek to certify a collective action on behalf of those who are fifty years of age or older. (See Docket No. 88 at 1). Defendant challenges this effort to “slice and dice” the class. (Docket No. 135 at 1).
Throughout its briefing, Defendant refers this Court to a series of cases in contending that courts have consistently rejected efforts akin to Plaintiffs’ request to certify a subgroup under the ADEA. See EEOC v. McDonnell Douglas Corp.,
We believe that there are stronger reasons for refusing to recognize such claims. For one thing, if such claims [for discrimination against subgroups] were cognizable under the statute, a plaintiff could bring a disparate-impact claim despite the fact that the statistical evidence indicated that an employer’s RIF criteria had a very favorable impact upon the entire protected group of employees aged 40 and older, compared to those employees outside the protected group. We do not believe that Congress could have intended such a result.
We agree, moreover, with the district court that if disparate-impact claims on behalf of subgroups were cognizable under the ADEA, 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. Adoption of such a theory, moreover, might well have the anomalous result of forcing employers to take age into account in making layoff decisions, which is the very sort of age-based decision-making that the statute proscribes.
McDonnell Douglas Corp.,
Plaintiffs, for their part, urge this Court to find that subgroup discrimination claims may be maintained. Albeit filed in then-response to the Defendant’s Motion for Summary Judgment,
Based upon the representations of the parties and this Court’s own research, it appears that the issue of subgroup claims under the ADEA has not been addressed by a controlling authority, whether the Third Circuit or Supreme Court.
Although this Court acknowledges that the trend has been away from Graffam and Finch, and towards McDonnell Douglas, this Court respectfully disagrees with the conclusions reached in Lowe and McDonnell Douglas. Lowe was concerned with the ability of a plaintiff to subdivide the protected class into infinite subgroups, at least one of which would presumably enable a statistical showing of disparate impact. See id. (noting that “an 85 year old plaintiff could seek to prove a discrimination claim by showing that a hiring practice caused a disparate impact on the ‘subgroup’ of those age 85 and above, even though all those hired were in their late seventies.”).
McDonnell Douglas arrived at the same conclusion, for slightly different reasons. In that case, the Eighth Circuit observed that, if subgroup claims were allowed, a plaintiff could bring a disparate impact claim despite the fact that statistical evidence might show that an RIF had actually had a favorable impact upon the entire protected group of employees over forty when compared to those employees outside of the protected group. McDonnell Douglas,
As stated, this Court does not agree with the conclusions reached in Lowe, McDonnell Douglas, or the cases that follow them. The Court will examine the broader context of the ADEA, explaining why it reads the ADEA to allow subgroup classification in disparate impact cases. With this background in mind, the Court will then address the specific concerns raised by Lowe and McDonnell Douglas.
i. The ADEA Background and Framework
The ADEA’s prohibition covers “discrimination] ... because of age.” 29 U.S.C. § 623(a)(1). The “prohibitions in [the ADEA] shall be limited to individuals who are at least 40 years of age.” 29 U.S.C. § 631(a). Congress, in its findings, makes clear that the ADEA was passed based on the concern that older workers are disadvantaged in the work place. See 29 U.S.C. § 621(a)(l)-(4).
In 2004, the Supreme Court examined the history of the ADEA in great detail in General Dynamics Land Systems, Inc. v. Cline,
During congressional hearings on what would become the ADEA, much was said on the impact of increasing age. See, e.g., Age Discrimination in Employment: Hearings on H.R. 3651 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Congress, 1st Sess. at 151 (1967) (hereinafter House Hearings) (statement of Rep. Joshua Eilberg) (“At age 40, a worker may find that age restrictions become common ... By age 45, his employment opportunities are likely to contract sharply; they shrink more severely at age 55 and virtually vanish by age 65”). “The record thus reflects the common facts that an individual’s chances to find and keep a job get worse over time; as between any two people, the younger is in the stronger position, the older more apt to be tagged with demeaning stereotype.” Cline,
The legislative history and the holding in Cline make one thing clear: age discrimination does not stop at forty. The older an employee (or potential employee) is, the more likely it is that that person will suffer from age discrimination. See House Hearings at 151. This Court sees nothing in the statute that contradicts this conclusion, or that would limit a court’s ability to examine in detail any possible disparate impact that may only impact those of more advanced age than 40-year-olds.
Indeed, the Court finds support for the opposite: the statute protects “individuals who are at least 40 years of age.” 29 U.S.C. § 631(a) (emphasis added). The statute, by its plain language, protects anyone who is forty or older. The statute likewise clearly protects against employment decisions made “because of [an] individual’s age.” 29 U.S.C. § 623(a)(1)-(2). Clearly, a fifty year old is older than forty, and there can be no serious dispute that fifty year olds can be discriminated against on the basis of their age, even when compared to other, younger members of the protected group.
The Court also finds support for the viability of subgroup claims in the Supreme Court’s recognition that the “ultimate legal issue” is the same in disparate impact and disparate treatment cases. See Watson v. Fort Worth Bank & Trust,
This Court finds further support for allowing subgroup claims by looking beyond the confines of the ADEA. Given the similarity of the statutory languagé, the Supreme Court has looked to, and followed, its reasoning in Title VII cases when analyzing the ADEA. Specifically, the Court followed its Title VII precedent in concluding that the ADEA allowed disparate impact claims.. See Smith v. City of Jackson, Miss.,
Of course, just because a subgroup may be defined under the ADEA does not mean that there are no limits upon that definition: the Cline decision makes clear that discrimination cannot occur with respect to those that are part of the protected class, but are relatively younger. The focus of Cline was a policy which arguably discriminated against those over forty and under fifty. See Cline,
The logical conclusion to be drawn from the Cline holding is that no subgroup may be defined with an upper boundary— only a lower one. If, for example, a plaintiff were to attempt to define a subgroup of 55-58 year olds, and there were employees over 58 years of age, the underlying argument that must necessarily be assumed is that those employees 59 and over have been treated better than those in the subgroup.
Further, because statistics are valuable in showing disparate impact, the Court
ii. Lowe and McDonnell Douglas
With this background in mind, this Court does not find the reasoning applied in Lowe or McDonnell Douglas to be sufficient to deny plaintiffs the ability to bring subgroup claims under the ADEA, at this stage.
The concern in Lowe was that a complaining party may be able to pick and choose how to define his subgroup in order to produce statistical evidence that might demonstrate discriminatory impact. Lowe,
One of the concerns raised in McDonnell Douglas is similar, but distinct. The Eighth Circuit’s fear was that, if plaintiffs were able to selectively define subgroups, employers would be forced to attempt the “impossible: to achieve statistical parity among the virtually infinite number of age subgroups in its work force.” McDonnell Douglas,
iii. Plaintiffs May Define a Class as 50 and Over
Given the foregoing discussion, the Court is of the belief that the Plaintiffs may define their collective class as a subgroup of the statutorily-protected class of employees over 40 years of age. This Court sees nothing in the statute that prohibits the rights of employees to do so, and the Court finds no sufficient justification in the non-binding precedent which refutes that conclusion. Instead, the Court finds highly persuasive the reasoning presented in Professor Sperino’s article, referenced above. See generally Sperino, 90 Marq. L.Rev. 227. The Court will, therefore, accept the collective group, as defined by the Plaintiffs, for purposes of the remaining analysis.
b. Expert Witnesses at the Conditional Certification Stage
The Court next turns to the parties’ dispute over the propriety of this Court’s consideration of expert evidence. Plaintiffs, for their part, oppose any use of expert evidence at this stage of litigation. (Docket No. 113 at 26-29). The gist of their argument, as the Court understands it, is the simple proposition that the Plaintiffs are not required to present expert testimony at the conditional certification stage. They do, however, submit with their reply brief, an expert report in opposition to PGW’s. (Docket No. 113-2). Plaintiffs ask that the Court consider this Report “only if the Court chooses to accept the Pifer Report as evidence in opposition to conditional certification — which it should not do.” (Docket No. 113 at 28).
Defendant responds that consideration of its expert testimony is appropriate precisely for the reasons Plaintiffs claim it is not: that is, that the authority upon which Plaintiffs rely to oppose the use of statistics in this discriminatory impact case discusses the use of statistical evidence in a disparate treatment case. (See Docket No. 126 at 15) (discussing Healy v. New York Life Ins. Co.,
The Court will first address the propriety of considering the Plaintiffs’ newly-raised expert report. “It is improper for the moving party to shift gears and introduce new facts or different legal arguments in the reply brief than [those that were] presented in the moving papers.” D’Aiuto v. City of Jersey City, Civ. No. 06-6222,
That is not to say that Plaintiffs’ report could not be raised as rebuttal evidence. “Whether to permit or prohibit the introduction of rebuttal evidence is committed to the sound discretion of the trial court.” Jackson v. City of Pittsburgh, Civ. No. 07-111,
Defendant avoids the issues just addressed because its expert report was filed contemporaneously with its responsive brief. This report is directed largely to the merits of the Plaintiffs’ claims of discrimination. It describes the percentages of those employees retained and terminated (see, e.g., Docket No. 104-20 at ¶¶ 22-25 (examining Plaintiffs’ brief references to age statistics and stating that the affidavit “focuses on whether [ differences between those PGW salaried employees terminated and those retained are statistically significant for each alternative protected class and for alternative categories of PGW salaries employees.”)), with little reference made to whether the proposed members were similarly situated to the named Plaintiffs.
The thrust of the Court’s inquiry at this juncture—i.e., at the conditional certification stage—“is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are ‘similarly situated’ under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.” Young v. Cooper Cameron Corp.,
Although these cases are not controlling, they are entirely consistent with the Third Circuit’s admonition that, “[d]uring the initial phase, the court makes a preliminary determination whether the employees enumerated in the complaint can be provisionally categorized as similarly situated to the named plaintiff.” Symczyk,
Given that the Court is not examining the legal merits of the Plaintiffs’ claims here, the Court finds that the Defendant’s expert report is not dispositive with respect to the instant motion. Defendant’s report is directed to statistical evidence of discrimination, not the element of similar situation. In his own words, Defendant’s expert “ha[s] been instructed ... to review, comment on and analyze the statistical significance, if any, of the alleged age discrimination claim by Plaintiffs within their proposed protected class of PGW salaried employees.” (Docket No. 104-20 at ¶ 12) (emphasis added). “The fundamental issue discussed herein is whether there is any statistical evidence of age discrimination during PGW’s reduction in force of its salaried employees on or about 31 March 2009.” (Id. at ¶ 16). The report speaks to the merits of the discrimination case, not the motion presently before the Court. Hence, the report is not instrumental in the Court’s decision to conditionally certify this case.
Having decided that the Plaintiffs’ proposed subgroup class claim is cognizable under the ADEA, and that the proposed expert evidence as to discrimination does not dictate the outcome of the similar situation analysis, the Court now turns to the merits of the motion for conditional certification. To qualify for conditional certification, Plaintiffs need only make out a “modest factual showing”, Symczyk,
Defendant argues that, even if the Plaintiffs show that they (and their proposed class members) were victims of a single decision, policy or plan, they “must further show that the putative class members: (1) were employed in the same corporate department, division and location; (2) advance similar claims; and (3) seek substantially the same form of relief.” (Docket No. 106 at 24 (citing Lockhart v. Westinghouse Credit Corp.,
A1 said, courts have examined a number of factors in the conditional certification analysis. These factors are summarized well in Wynn v. National Broadcasting Co., Inc.,
Lusardi involved “various work force reductions.”
The Wynn case itself presents a different set of facts which resulted in a denial. That case addressed “an unprecedented move”: “combining the decisions of several loosely-related entities, under an umbrella of a common industry-wide practice.” Wynn,
After review of these cases, considering the facts of the pending case, the Court concludes that Plaintiffs’ request for conditional certification should be granted. Although the instant facts are not identical to any set of facts in the cases addressed above, or any other that the Court has found, the Court believes this case has much more in common with Hyman than it does Lusardi.
First, the Court looks to the activities of the Defendant. Plaintiffs have demonstrated that they were all terminated in the course of a single, company-wide RIF. This RIF clearly constitutes a “single decision, policy or plan,” even if it was implemented by individual managers. Further, the named Plaintiffs were all over 50 years old when they were terminated from PGW. Despite what appears to be the common practice of allowing qualified workers to apply for alternative positions when theirs are at risk,
As to the actual similarities between members of the proposed class, this Court agrees with Hyman’s reasoning that termination via the same RIF “weights] very strongly in favor of a collective action.” Hyman,
Finally, the Court observes that the proposed class members will rely on common evidence to prove their alleged discrimination. This, too, weighs in favor of conditional certification. See id. at 5.
Because this Court is convinced that the Plaintiffs have made an adequate showing of similarity to surpass the relatively low hurdle of conditional certification, the Court will grant leave to pursue the collective action. However, the Court notes that this does not mean Plaintiffs have satisfied the ultimate burden they will face in achieving certification of this representative action. See Symczyk,
d. PGW’s Wal-Mart Argument
Because it raises an important question, the Court also addresses PGW’s argument that the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
To the extent that these cases describe Wal-Mart as “instructive”, Ruiz,
Second, there is language in the WalMart case itself that indicates that conditional certification is appropriate in this case. The Court observed that:
"What matters to class certification ... is not the raising of common “questions” — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
Wal-Mart,
Thus, while the Court does believe that the reasoning in Wal-Mart is instructive in collective action context, the Court is not persuaded that following Wal-Mart would result in the denial of conditional certification here. Instead, the Court be
e. Court-Facilitated Notice
Under Sperling, this Court has the authority to facilitate notice to putative opt-in plaintiffs. Sperling,
Finally, there is some dispute over whether Defendant must provide Plaintiffs with contact information for the prospective class members. On that question, the Court finds that it is appropriate for Defendant to produce the same. See Sperling III,
IV. Conclusion
For the foregoing reasons, Plaintiffs’ Motion for Conditional Certification (Docket No. 88) is GRANTED, in part. The Court will convene a status conference to address any remaining notice issues once the Court receives the parties’ status reports and proposed notice and consent forms, as directed in the forthcoming Order. Said appropriate Order follows.
Notes
. Between the March 9, 2012 hearing and the issuance of the transcript, the Court received Defendant’s Motion for Leave to File Supplement (Docket No. 164) and Motion to Withdraw (Docket No. 169). The Motion for Leave to File Supplemental Authority was renewed (Docket No. 172) and subsequently denied. (Docket No. 178). The Court has not considered the supplemental authority — an Arbitrator’s Order and Opinion from another case involving Defendant — in deciding the present motion.
. Although Plaintiff Csukas was terminated the day before, it appears that those employees terminated on March 30, 2009 were terminated as part of the same RIF, with the implication being that they, too, were subject to the same policy.
. The parties acknowledge that their arguments overlap as to Plaintiffs’ Motion for Conditional Certification (Docket No. 88) and Defendant’s Motion for Summary Judgment (Docket No. 101). (See Docket No. 176 at 3-4). Because the arguments are related, the Court reads each motion and its related filings as informing the Court’s analysis of the other motion.
. The closest either party gets to a "controlling” authority on this question is Defendant’s citation to Myers v. Delaware County Community College, Civ. No. 05-5855,
. The Court recognizes that the Smith decision did observe that "the scope of disparate-impact liability under ADEA is narrower than under Title VII." Smith,
. If there are no employees older than 58 in this hypothetical, than the subgroup is, for all purposes, a group defined with only a lower limit of 55 years of age. This group would be in accord with Cline, as it would compare older to younger, only.
. The Court observes that it appears that the average employee age is increasing. By 2016, workers age 65 and over are expected to account for 6.1 percent of the total workforce, which is a sharp increase from the 2006 share of 3.6 percent. See Projected growth in labor force participation of seniors, 2006-2016, available at http://www.bls.gov/ opub/ted/2008/jul/wk4/art04.htm (last visited May 2, 2012). Thus, Professor Sperino’s point may not hold true for employees age 65 and older, but it surely holds true at some point in the age spectrum.
. While technically possible, this Court perceives that it is highly unlikely that litigants may engage in the child-like practice of subdividing years. For example, PGW points to the possibility of a "creative 'subset,' even one as absurd as ages 45 '/> to 49 (Docket No. 135 at 6). That truly is absurd. One can only imagine a litigant coming to federal court and arguing "Acme Company discriminated
. The extent of Plaintiff’s reference to statistical evidence is contained on pages 9 and 13 of their Brief in Support of their Motion for Conditional Class Certification. (Docket No. 91). Page 9 states only that the "standard-less evaluation practice resulted in the termination of approximately 105 employees, 54.3 percent of whom were over 50.” (Docket No. 91 at 9). Page 13 contains slightly more detail:
Just considering the 105 or so employees terminated, it is easily discernible that the impact was largely borne by the older workers, with those over 50 being especially hard hit. The percentage of employees who were 40 and older who were terminated was 80 percent, and the percentage of employees who were 50 and older who were terminated was 54.3 percent. (Id. at 13).
These "passing reference[s]” are insufficient, without more, to preserve the argument for later. See Laborers' Intern. Union of North America, AFL-CIO v. Foster Wheeler Energy Corp.,
. PPG's October 30, 2000 RIF Guidelines make clear that that entity allowed the practice of "bumping,” where a satisfactory worker whose position was eliminated would "displace" a worker who received “needs improvement” ratings. (Docket No. 88-4 at 3). Likewise, Mr. Cooney indicated at his deposition that his former employer, Whirlpool, had a similar policy in place, where it "made sure that [displaced employees] were made
. See, e.g., Machinchick v. PB Power, Inc.,
. The Court recognizes and accepts the Defendant's argument that a "lack of consideration of historical performance data and HR oversight, and failure to use a predecessor company’s (PPG’s) RIF guidelines do not alone establish that any individual or group of individuals was discriminated against.” (Docket No. 126 at 11 (citing Marione v. Metro. Life Ins. Co.,
. The Court is not aware of any case within this Circuit on the point, and emphasizes that it does not decide, at this juncture, whether the reasoning in Wal-Mart is necessarily to be applied to collective actions in the ADEA. Rather, the Court simply observes that, on the record before it, even if Wal-Mart was applicable, it would not lead this Court to conclude that conditional certification should be denied.