1 THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRCIT OF VIRGINIA Norfolk Division JOSEPH H. ANDREANA, On behalf of himself and all others similarly situated, Plaintiff, v. Civil Action No.: 2:17-cv-574 VIRGINIA BEACH CITY PUBLIC SCHOOLS and SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, DEFENDANTS’ OPPOSITION TO MOTION FOR CONDITIONAL CERTIFICATION COME NOW Defendants VIRGINIA BEACH CITY PUBLIC SCHOOLS and SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, by counsel, and for their Opposition to the Plaintiff’s Motion for Conditional Certification, state as follows: RELEVANT PROCEDURAL HISTORY Plaintiff asserts a collective action against both defendants under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”), for disparate treatment (Count I), disparate impact (Count II), and pattern and practice discrimination (Count III), on behalf of himself and all others similarly situated. Plaintiff moves for conditional certification of the ADEA claims for the following opt-in class: All of the CRS employees who interviewed for the ITS positions but were not selected, all of whom who were over 40 and in the protected class and had greater CRS and technology experience than substantially younger, less qualified individuals selected by Defendants. ECF 5 p. 1. Thus, his proposed class includes three factors: they are those Case 2:17-cv-00574-RAJ-LRL Document 20 Filed 12/11/17 Page 1 of 22 PageID# 124
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THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRCIT OF VIRGINIA
Norfolk Division
JOSEPH H. ANDREANA,
On behalf of himself and all others
similarly situated,
Plaintiff,
v. Civil Action No.: 2:17-cv-574
VIRGINIA BEACH CITY PUBLIC SCHOOLS
and
SCHOOL BOARD OF THE CITY OF
VIRGINIA BEACH,
DEFENDANTS’ OPPOSITION TO
MOTION FOR CONDITIONAL CERTIFICATION
COME NOW Defendants VIRGINIA BEACH CITY PUBLIC SCHOOLS and SCHOOL
BOARD OF THE CITY OF VIRGINIA BEACH, by counsel, and for their Opposition to the
Plaintiff’s Motion for Conditional Certification, state as follows:
RELEVANT PROCEDURAL HISTORY
Plaintiff asserts a collective action against both defendants under the Age Discrimination
in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”), for disparate treatment (Count I),
disparate impact (Count II), and pattern and practice discrimination (Count III), on behalf of
himself and all others similarly situated. Plaintiff moves for conditional certification of the ADEA
claims for the following opt-in class: All of the CRS employees who interviewed for the ITS
positions but were not selected, all of whom who were over 40 and in the protected class and had
greater CRS and technology experience than substantially younger, less qualified individuals
selected by Defendants. ECF 5 p. 1. Thus, his proposed class includes three factors: they are those
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who are (i) over 40, and with (ii) greater CRS experience and (iii) greater technology experience,
compared to those who were selected who were “substantially younger,” and “less qualified.”
As a preliminary matter, Defendants have two Motions to Dismiss pending in this matter.
Defendants have filed a Motion to Dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(1)
for lack of subject matter jurisdiction (ECF 9, 10), on the basis that (i) Plaintiff’s charge only
asserted a disparate treatment claim and did not assert a disparate impact or pattern and practice
claim, such that those claims have not be administratively exhausted; and (ii) Plaintiff never filed
an EEOC charge against the School Board of the City of Virginia Beach, and therefore, failed to
exhaust his administrative remedies as against that Defendant, such that all claims against the
School Board must be dismissed. If this Motion is granted, all claims would be dismissed as
against both defendants, except the disparate treatment claim against Virginia Beach City Public
Schools.
Defendants have also filed a Motion to Dismiss for Failure to State a Claim pursuant to
Fed. R. Civ. P. 12(b)(6) (ECF 15, 16) on the basis that (i) Plaintiff fails to state a claim for disparate
impact, as he fails to identify a specific employment practice, fails to assert facts to support a
statistical disparity cognizable under the law, and fails to allege facts from which the Court could
infer the required causation; (ii) Plaintiff fails to state a claim for pattern and practice
discrimination as he fails to assert (other than in an impermissibly conclusory fashion) that the
alleged discrimination was Defendants’ standard operating procedure and fails to assert the
discrimination was intentional; and (iii) dismissal of all claims against Virginia Beach City Public
Schools (“VBCPS”) is proper as it is not an entity that can be sued. If this Motion is granted, all
claims would be dismissed, except the disparate treatment claim against the School Board.
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Only five individuals (including Plaintiff) in the proposed class have filed charges of age
discrimination with the EEOC relating to the facts and claims asserted in this action. Three of the
five have not filed a complaint within the requisite 90 days after receipt of Dismissal and Notice
of Rights letters from the EEOC and thus have let the statute of limitations run on their claims.
Only Plaintiff and one other employee, Margaret Marcotte, have filed Complaints within the
requisite 90 days.1 See Marcotte v. Virginia Beach City Public Schools, et al, 2:17-cv-00606-
MSD-RJK (ED Va, November 20, 2017).2 Thus, if the Court denies the motion for certification
of a collective action, there are no additional claimants who may file timely claims arising from
the facts asserted in the instant action.
FACTUAL BACKGROUND
Plaintiff alleges that, in the spring of 2015, Defendants decided to reduce 104 Computer
Resource Specialist (“CRS”) positions to 84 Information Technology Specialist (“ITS”) positions.
Compl., ¶ 10. Plaintiff alleges that “Defendants implemented a screening and evaluation process
and policy for the purpose of choosing among the candidates for the ITS positions.” Id., ¶ 11.
Plaintiff argues that “Defendants’ screening and evaluation process did not evaluate applicants
fairly but instead discriminated against candidates based on age” (emphasis added) and that “CRS
employees who were substantially older and with vastly more experience in the position and field
1 Although a “Notice of Consent to Join Suit” was recently filed in this suit by a Marie
Gerdes, ECF 18, on the proposed form filed by Plaintiff, ECF 4-2, such Notice is improper and
should be struck, as a consent to “opt-in” may only be filed after the class has been certified, and
Notice and Consent have been approved by the Court.
2 The causes of action asserted by Plaintiff and Ms. Marcotte are not the same. Plaintiff
asserted claims of disparate treatment, disparate impact and pattern and practice discrimination.
Ms. Marcotte asserted claims for disparate treatment and disparate impact, but did not assert a
claim for pattern and practice. She also asserted an additional claim for retaliation arising from
alleged actions of the Defendants in response to her having allegedly opposed the discrimination.
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were systematically passed over for the ITS position in favor of younger, less-qualified
applicants.” Id., ¶ 12.
Notably, Plaintiff provides no specific factual support or evidence with respect to this
allegedly discriminatory “screening and evaluation process”, i.e., he does not provide any
information regarding the specific question, line of questioning, screening technique, irregularity
or anything else that was the allegedly discriminatory process and of which each of the supposed
class members were victims. The Court is left only with the conclusory allegation of a
“discriminatory process.” Similarly, Plaintiff provides no evidence regarding the alleged “greater
CRS and technology experience”.
The facts as relevant to Plaintiff’s motion are as follows:
As a result of the development of Superintendent, Dr. Aaron Spence’s “Charting the Course
For Every Student, For Every Day,” which was incorporated into the School Board’s strategic plan
entitled Compass to 2020: Charting the Course (Ex. 1 to ECF 20-1), VBCPS’s technology plan
was reviewed to assess whether expectations were being met for “daily, rigorous engagement [of
students] through innovation and supportive technologies” Id., and it was determined that there
were inconsistencies among schools with respect to the services provided by the 103 CRS
positions3 and concerns regarding the availability of digital technology in the classroom. See
Affidavit of William Johnsen, filed herewith as ECF 20-1, at ¶ 3-5.
The Department of Teaching and Learning (T&L) and Department of Technology (DOT)
were tasked with finding ways to provide necessary technical support and promote learning with
an increased a focus on technology. Id. at ¶ 4. After extensive analysis, two new positions were
3 There were 103 full time CRS positions, which were held by 104 persons, as 2 were part-
time employees.
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created, Technology Support Technician (TST) and Instructional Technology Specialist (ITS), and
two positions were eliminated, Data Support Specialist (DSS) and Computer Resource Specialist
(CRS). Id. at ¶ 5. The TST position was to subsume all daily tech support work. See TST job
description, Ex. 3 to ECF 20-1.
A team comprised of individuals from different departments and areas of expertise
developed a job description for the new ITS position by using the Standards of Quality and job
descriptions for other positions within VBCPS. Id. at ¶ 6.
An application and interview process was developed to ensure that all current CRSs had
an equal opportunity to be considered for the new ITS position. Id. at ¶¶ 7-11. Evaluation criteria
were developed for the interview process and individuals were selected to serve on an interview
panel. Id. Each CRS who applied4 for an ITS position was interviewed by a four-person interview
panel. Id. at ¶ 12. Multiple interview panels conducted the first-round interviews. Id. The CRS
was asked to create a ten-minute lesson plan and present that lesson plan to the interview panel,
after which, the interview panel asked the applicant scripted questions directly related to the job
description contained on an Instructional Technology Specialist Interview Questions (“Interview
Questions”). Id. ¶¶ 13-14; see Interview Questions, attached as Ex. 5 to ECF 20-1. Indicators
were referenced at the bottom of each question in the Interview Questions, which would guide the
panel to recognizing key skills and requirements for identifying qualified candidates. Id. at ¶ 14.
The Interview Questions did not require age information, and there was no information provided
to the interview panel with respect to age of candidates. Id. The Interview Questions required
each applicant to provide the number of years he or she had been a CRS, and those with a greater
4 Of the 104 CRSs, a total of seven (7) did not seek consideration for the ITS posting on
February 17, 2015, which closed on February 24, 2015. Id. at ¶ 8.
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number of years actually received a higher number of points in the rubric and were rewarded for
their longevity in the position. Id. at ¶ 17; Ex. 5 to ECF 20-1.
A short questionnaire was also sent to principals and Instructional Technology
Coordinators (ITC) who supervised or supported each candidate to request input on their
performance in the CRS position. Id. at ¶ 9. No age information was provided in this stage. Id.
Next, a Review Committee5 created an ITS eligibility list, considering each applicant’s score on
the rubric on the Interview Questions, the comments provided by each interviewer in the Interview
Questions, the principal and ITC input and the content of the lesson plan provided by each
applicant. Id. at ¶ 18. The Review Committee did not meet with any candidate and no data was
sought or received concerning the age of the applicants. Id. at ¶ 20.
Successful ITS candidates demonstrated strong instructional techniques using
technological tools – skills unrelated to a candidate’s age, seniority or tenure with the VPCPS. Id.
at ¶ 21. The result of the ITS selection process demonstrate consistency with the Superintendent’s
directives. Id. Plaintiff was not selected as part of this process based upon his performance before
the Interview Panel and lack of instructional expertise. Id. at ¶ 22. Ultimately, 75 candidates were
offered positions, and after one chose to resign, 74 candidates were placed in CRS positions. Id.
¶ 23. Based on the need to fill the remaining ten (10) ITS positions, the ITS position was then
posted in March of 2015 and was opened to the public and any CRS employees who wished to
reapply. Id. at ¶ 24. Plaintiff chose not to apply for an ITS position in this or any later posting.
Id. at ¶ 25. Seven candidates, who applied to the March 2015 posting, were selected (for six
5 The Review Committee was made up of three individuals, whose average age was 47.7
years. Id. ¶ 19.
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positions, as two candidates were part-time), none of which were former CRS employees. Id. at ¶
27.
After this second posting, because VBCPS still had four ITS positions to fill, the
applications of the remaining former CRS applicants were reviewed to determine if four more
candidates could be selected from the pool. Id. at ¶ 28. It was determined that an additional four
candidates met the minimum qualifications. Id. Each were counseled about areas of improvement
and offered positions as ITS, which each accepted. Id. None of these candidates had protested
their prior non-selection, or protested any discrimination on the basis of age. Id.6
Former CRSs not selected for the ITS positions were offered a choice between a TST or
another classroom teaching position without an interview as a priority transfer. Id. at ¶ 7. Of the
18 CRSs not selected for an ITS position, 15 accepted a TST position or other teacher position and
three chose to retire. Id. at ¶ 29.
With respect to Plaintiff’s motion, the relevant age information is as follows (Affidavit of
Scott Zellner, ECF 20-2):
• The average age of the 104 CRSs as of March 30, 2015 was 48.52.
• The average age of the 97 CRSs who interviewed, as of March 30, 2015,
was 48.04.
• The average age of the 79 CRSs selected for the ITS position, as of March
30, 2015, was 46.20 years, 1.84 years less than the average of all CRS who
interviewed (48.04).
• The average age of the 75 CRSs selected for the ITS position by the Review
Committee in response to the first posting, as of March 30, 2015, was 45.56
years, 2.48 years less than the average of all CRS who interviewed (48.04),
and 2.96 years less than the average of the 104 CRS prior to the
restructuring.
6 Plaintiff does not submit any evidence in support of his contention that these four were
hired after they challenged discrimination nor state the basis for his supposed knowledge of the
same in his Declaration.
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• The average age of the 85 ITS hired, as of March 30, 2015, was 45.2, 3.32
years less than the average age of the 104 CRS prior to the restructuring
(48.52).
Plaintiff has not presented any evidence other than a conclusory allegation that the
proposed class members had “greater technology experience” than those who were hired for the
ITS position. He does not define “technology experience.” Although he provides alleged years
of “technology experience” in his declaration for those CRS employees who were selected for the
ITS position, he appears to be basing this off the information contained in the chart attached to his
declaration under the column header “Tot_Tch_Exp.” However, this is a misreading, as
“Tot_Tch_Exp” refers to total teaching experience, not total technology experience. See ECF 20-
1 at ¶ 16. As the chart refers to total teaching experience, he has not provided any evidence of the
“technology experience” of those CRSs who were not selected for the ITS position for comparison.
The Interview Questions do not require information regarding “technology experience.” Ex. 5 to
ECF 20-1.
Plaintiff has likewise not provided a definition of “CRS experience,” and it is thus
impermissibly vague, as it could be inferred to mean different things, e.g., number of years as a
CRS or the quality of work performed.
APPLICABLE LAW
Plaintiff seeks conditional certification of the ADEA disparate treatment, disparate impact
and pattern and practice claims. The ADEA incorporates the collective action procedures and
scheme of the Fair Labor Standards Act. 29 U.S.C. §626(d) (The provisions of this chapter shall
be enforced in accordance with the powers, remedies, and procedures provided in sections … 216
(except for subsection (a) thereof … of this title…”). This scheme permits a plaintiff to bring suit
on his own behalf and on behalf of other employees “similarly situated.” Hoffman-Roche Inc. v.
Sperling, 493 U.S. 165, 167 (1989); 29 U.S.C. §216(b).
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The FLSA does not define “similarly situated” and the Fourth Circuit has not yet applied a
standard for determining when plaintiffs are “similarly situated” in the context of an FLSA or
ADEA class certification action. Gregory v. Belfor USA Group, Inc., 2012 WL 3062696, at *2–3
(E.D. Va. July 26, 2012), citing Enkhbayar Choimbol v. Fairfield Resorts, Inc., 475 F. Supp. 2d
557, 562 (E.D. Va. 2006). However, courts have determined if potential class members are
similarly situated by assessing the existence of “issues common to the proposed class that are
central to the disposition of the [ADEA] claims and that such common issues can be substantially
adjudicated without consideration of facts unique or particularized as to each class
member.” LaFleur v. Dollar Tree Stores, Inc., 30 F. Supp. 3d 463, 467–76 (E.D. Va. 2014), citing
Houston v. URS Corp., 591 F. Supp. 2d 827, 831 (E.D. Va. 2008) (Plaintiffs must demonstrate
some factual nexus connecting them to other potential plaintiffs as victims of an unlawful policy)).
Although considered a “fairly lenient” standard, the “similarly situated” requirement is not
“invisible.” Id., citing Houston, 591 F.Supp.2d. at 831 (citing, inter alia, Bernard v. Household
Int'l, Inc., 231 F.Supp.2d 433, 435 (E.D.Va.2002)). To obtain conditional certification, a plaintiff
must show “substantial allegations that the putative class members were together the victims of a
single decision, policy, or plan infected by discrimination.” Gregory, 2012 WL 3062696 at *2–3,
citing Sperling v. Hoffmann–La Roche, Inc., 118 F.R.D. 392 (D.N.J.1988), aff'd in part, 862 F.2d
439, 444 (3d Cir.1988), aff'd, 493 U.S. 165 (1989). “There must be sufficient reason to believe
that there are issues common to the proposed class that are central to the disposition of
the FLSA claims.” Id.
It is the plaintiff who bears the burden of demonstrating that notice is appropriate. Gregory,
2012 WL 3062696, at *3. Conclusory allegations are not sufficient to support a motion for
conditional collective action certification. Benavides v. Serenity Spa NY Inc., 166 F. Supp. 3d 474,
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481–82 (S.D.N.Y. 2016). Further, “[m]ere allegations will not suffice; some factual evidence is
necessary.” Bernard v. Household Int'l, Inc., 231 F.Supp.2d 433, 435 (E.D.Va.2002) (citation
omitted). Thus, the issue before the Court here is whether Plaintiff has met his burden under the
“similarly situated” analysis, i.e., whether he has alleged something more than conclusory
allegations and made a sufficient factual showing that he and the potential plaintiffs together were
victims of a common policy or plan that violated the law. See Choimbol, 475 F.Supp.2d at 564
(citations omitted). A defendant may offer contrary evidence at the conditional certification stage
in an attempt, for example, to demonstrate that the plaintiff has provided only conclusory
allegations or has omitted relevant information. See Reyes v. AT & T Corp., 801 F. Supp. 2d 1350,
1357–59 (S.D. Fla. 2011).
If there is sufficient evidence in the record at this stage to demonstrate that notice is not
appropriate, the court should deny certification outright. Purdham v. Fairfax County Public
Schools, 629 F. Supp. 3d 544, 547 (E.D. Va. 2009 (Cacheris, J.)). In addition, “[a] court may deny
plaintiffs’ right to proceed collectively if the action arises from circumstances purely personal to
the plaintiff, and not from any generally applicable rule, policy or practice.” Simmons v. T-Mobile
USA, Inc., 2007 WL 210008, at *4 (S.D. Tex. Jan. 24, 2007) (citations omitted).
ARGUMENT
I. Plaintiff’s motion is premature.
As an initial matter, Defendant has filed two motions to dismiss (ECF 9, 10, 15, 16) which,
if granted, would dispose of all causes of action in this matter as against both defendants. One of
the motions seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction for Plaintiff’s failure to exhaust his administrative remedies. It is proper to
resolve the motions to dismiss, especially to determine if this court has subject matter jurisdiction
over the claims raised in the lawsuit, prior to turning to a motion to conditionally certify a class
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pertaining to those very claims. Should the Court grant the motions to dismiss, the motion for
conditional certification would be rendered moot. Efficiency and economy would both be served
by not reaching the issue of certification until the Court has determined the issues of subject matter
jurisdiction and the validity of Plaintiff’s claims. Thus, the Court should properly resolve the
Motions to Dismiss prior to turning to a motion for conditional certification.
II. Conditional certification of class is not warranted.
Plaintiff seeks the certification of a class of “all of the CRS employees who interviewed
for the ITS positions but were not selected, all of whom who were over 40 and in the protected
class and had greater CRS and technology experience than substantially younger, less qualified
individuals selected by Defendants.” ECF 5 p. 1. The proposed class members thus are (i) over
40, with (ii) greater CRS experience and (iii) greater technology experience, compared to those
who were selected who were “substantially younger,” and “less qualified.”
A. Plaintiff’s proposed class is impermissibly vague
As alleged, Plaintiff’s proposed class requires a determination of three factors: they are
those CRSs who are (i) over 40, and with (ii) greater CRS experience and (iii) greater technology
experience, compared to those who were selected who were “substantially younger,” and “less
qualified.” The proposed class is impermissibly vague with respect to inclusion of CRSs with
“greater CRS and technology experience.” Plaintiff does not define either “greater CRS
experience” or “greater technology experience.” “CRS experience” could be inferred to mean any
number of things, for example, number of years as a CRS or the quality of work performed as a
CRS. Neither the Interview Questions nor any other information provided in the selection process
required information regarding “technology experience,” ECF 20-1 at ¶ 15; Ex. 5 to ECF 20-1,
and there is no evidence that the Defendants used “technology experience” as a factor for selection.
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Such vague terms render it an impossibility to determine if the putative class members are similarly
situated with respect to these factors.
The proposed class is also impermissibly vague with respect to time, i.e., ITS positions
have been posted on numerous occasions in 2016 and 2017, and Plaintiff does not provide a
temporal boundary to the proposed class.
B. A claim of disparate treatment (rather than disparate impact or pattern and
practice discrimination) is not suited for a collective action
A claim of disparate treatment is not suited for a collective action due to the inherent
necessity for consideration of facts unique and particularized as to each class member with respect
to such a claim. Plaintiff’s own allegations regarding the disparate treatment claim make this clear.
ECF 5 p. 4 (“Plaintiff and those similarly situated were better qualified than all of the younger
individuals…. They met all the bona fide occupational qualifications of the ITS position. All had
experience in technology and the CRS position that exceeded that of those Defendants selected.”)
These factors, as relevant to any disparate treatment claim, would require the court to make
substantial individualized factual determinations for each of the putative class members, such that
conditional certification is inappropriate. See Houston v. URS Corp., 591 F.Supp.2d 827, 831–32
(E.D.Va.2008); Rhodes v. Cracker Barrel Old Country Store, Inc., 213 F.R.D. 619, 677 (N.D. Ga.
2003), citing Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 n. 10 (11th
Cir.1992) (“Disparate treatment claims, by their very nature, are individual”); Adams v. Florida
Power Corp., 255 F.3d 1322, 1324 (11th Cir. 2001) (ADEA disparate treatment claims found not
sufficiently similar to support proceeding as a class, such that class members would have to pursue
individual remedies separately). This is especially evident where, as here, Plaintiff has failed to
state a claim for pattern and practice disparate treatment, ECF 15, 16, such that any disparate
treatment claim must arise from individualized facts.
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C. Plaintiff has not alleged any facts supporting conclusory allegation that he and
putative class members were the “victims of a single decision, policy or plan”
To obtain conditional certification, a plaintiff must show “substantial allegations that the
putative class members were together the victims of a single decision, policy, or plan infected by
discrimination.” Gregory, 2012 WL 3062696 at *2–3, citing Sperling v. Hoffmann–La Roche,
Inc., 118 F.R.D. 392 (D.N.J.1988), aff'd in part, 862 F.2d 439, 444 (3d Cir.1988), aff'd, 493 U.S.
165 (1989). Plaintiff’s conclusory allegation that there was a “discriminatory screening and
interview process,” without any supporting facts, and made in only one (his own) declaration,
without evidence that at least suggests that other CRS employees suffered from that same practice,
does not satisfy even the “lenient” standard for a finding of “similarly situated.”
Conclusory allegations are not sufficient to support a motion for conditional certification.
Benavides v. Serenity Spa NY Inc., 166 F. Supp. 3d 474, 481–82 (S.D.N.Y. 2016). Plaintiffs must
offer something of evidentiary value to demonstrate that similarly situated employees exist and,
where plaintiffs fail to meet this minimal requirement, their motion for conditional certification
may be denied. See Silva v. Calle 8, LLC, No. 12–CV–677 (ERK) (MDG), 2013 WL 6330848, at
*3 (E.D.N.Y. Dec. 5, 2013) (“where plaintiffs fail to provide either evidentiary support, such as
affidavits or supporting documents, or specific factual allegations, courts routinely deny
conditional certification”) (collecting cases). Plaintiff consequently must provide factual detail or
evidence beyond simply alleging that a “discriminatory process” existed with respect to the CRS
applicants.
Plaintiff has not provided any factual detail, supported by evidence, by which the Court
could evaluate whether he and the proposed class members were indeed victims of a common
decision, policy or plan. Plaintiff provides no specific factual support or evidence with respect to
any manner in which the “screening and evaluation process” was allegedly discriminatory, e.g.,
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the specific question, line of questioning, screening technique, irregularity or anything else that
was an allegedly discriminatory process and of which each of the supposed class members were
victims. Other than his “statistics,” which are not compelling, as will be addressed in the next
section, he has not presented any evidence that the putative class members were subjected to the
same allegedly discriminatory practice, whatever that practice may be.7
In effect, Plaintiff requests conditional certification based on nothing more than an
allegation that he and others applied for, but were not offered an ITS position. This is not sufficient,
as a plaintiff “must present ‘some evidence, beyond pure speculation, of a factual nexus between
the manner in which the employer's alleged policy affected [them] and the manner in which it
affected other employees.’” Freeman v. MedStar Health Inc., 187 F. Supp. 3d 19, 29–30 (D.D.C.
2016) (citations omitted) (alteration in original).
The cases cited by Plaintiff support that Plaintiff’s allegations are not sufficient; in each,
the Court held that conditional certification was appropriate based upon “detailed allegations,
supported by affidavits, that the putative class members were together the victims of a single
decision, policy or plan.” Williams v. Sprint/United Mgt. Co., 222 F.R.D. 483, 486–87 (D. Kan.
2004). For example, in Williams, the court concluded that provisional certification was
appropriate, as:
[c]learly, plaintiff's first amended complaint contains detailed
allegations, supported by affidavits, that the putative class members
were “together the victims of a single decision, policy, or plan.” See
Thiessen, 267 F.3d at 1102. According to plaintiff's first amended
complaint, Sprint intentionally treated younger employees more
favorably than older employees in connection with its reduction in
force by transferring *487 younger employees into “safe” positions;
by transferring older employees to positions that were marked for
7 Ms. Marcotte’s complaint is almost identical with respect to reliance upon the same
conclusory allegations, and likewise provides no factual detail that would allow the court to
determine that she was subjected to the same allegedly discriminatory process.
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elimination; by adopting an age-biased performance rating system
knowing that older employees would not fare as well as younger
employees under the system; and by providing decision makers with
age-related information about employees for use in making
termination decisions. These allegations are more than sufficient to
support provisional certification.
222 F.R.D. at 486-87. Plaintiff has alleged no such “detailed allegations” here.
See also Dallas v. Alcatel-Lucent USA, Inc., 09-14596, 2012 WL 424878, at *3 (E.D. Mich.
Feb. 9, 2012) (court finding conditional certification appropriate based upon allegations that
Defendant knew that obsolete skill groupings were populated with a high percentage of older
installers and used those obsolete skill groupings to target older installers for permanent transfers
in an attempt to force resignations or retirements); Jackson v. New York Tel. Co., 163 F.R.D. 429,
432 (S.D.N.Y. 1995) (court finding conditional certification appropriate based upon “ample
allegations” that Force Management Plan discriminated by exempting recent hires and promotees
and favoring recent degree recipients).
Plaintiff likewise does not reach the level of factual detail found to be sufficient in
conditional certification (FLSA) cases in the Eastern District of Virginia. Where conditional
certification has been granted, the plaintiff has alleged facts demonstrating a plan or policy, not a
mere conclusory allegation of the same.8
8 See, e.g., LaFleur v. Dollar Tree Stores, Inc., 2:12-CV-00363, 2012 WL 4739534, at *10–
11 (E.D. Va. Oct. 2, 2012) (declarations submitted with motion asserted that plaintiffs “were
required to work while off the clock on a consistent basis using substantially similar means and
methods, indicating Dollar Tree developed an unlawful common policy or plan to do so”);
Gregory v. Belfor USA Group, Inc., 2012 WL 3062696, at *6 (E.D. Va. July 26, 2012) (granting
conditional certification under FLSA where plaintiff alleged a common plan or policy of “denying
employees overtime wages by misclassifying them as “Exempt” under the FLSA”); Houston v.
submission of consistent employee declarations has consistently been held as sufficient and
admissible evidence of a policy to be considered for conditional class certification); Earl v.
Norfolk State U., 2:13CV148, 2014 WL 6608769, at *5–8 (E.D. Va. Nov. 18, 2014) (As evidence
of the existence of a class of plaintiffs similarly situated to the named plaintiff, courts consider
affidavits from other employees who assert that a defendant has violated their rights in the same
manner as those of the named plaintiff).9
Choimbol v. Fairfield Resorts, Inc., 475 F. Supp. 2d 557, 562–63 (E.D. Va. 2006) (Court found
that Plaintiffs met requisite showing for conditional certification based upon all of the Plaintiffs
alleging that they were victims of Defendant’s policy of withholding minimum wages and
overtime pay). See also Black v. Settlepou, P.C., No. 3:10–CV–1418–K, 2011 WL 609884
(N.D.Tex. Feb. 14, 2011) (granting conditional class certification where plaintiff alleged common
policy in violation of the FLSA was the misclassification of paralegals as “exempt”). 9 Further evidence of the fact that Plaintiff is not similarly situated is that the one other
potential class member who has filed a legal action, Margaret Marcotte, has asserted markedly
different causes of action. See Marcotte v. Virginia Beach City Public Schools, et al, 2:17-cv-
00606-MSD-RJK (ED Va, November 20, 2017). While Plaintiff asserted claims of disparate
treatment, disparate impact and pattern and practice discrimination, Ms. Marcotte only asserted
claims for disparate treatment and disparate impact, and not for pattern and practice. She also
asserted an additional and distinct claim for retaliation arising from the Defendants actions in
responding to her having allegedly opposed the discrimination. Likewise, the process by which
the two sought an ITS position was distinct. Whereas Plaintiff failed to submit his name after the
first job posting, Marcotte submitted her name on numerous occasions in response to postings in
2015, 2016 and 2017. See Complaint, ECF 1, in Marcotte, 2:17-cv-00606-MSD-RJK (ED Va,
Nov. 20, 2017).
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In summary, with a conclusory allegation of a discriminatory scheme, no factual detail and
support only by his own declaration, Plaintiff has not “demonstrated some factual nexus
connecting [him] to other potential plaintiffs as victims of an unlawful policy.” LaFleur v. Dollar
Tree Stores, Inc., 2:12-CV-00363, 2012 WL 4739534, at *10–11 (E.D. Va. Oct. 2, 2012).
D. The statistics offered by Plaintiff are not sufficient
Without any factual detail, Plaintiff in effect relies upon his “statistical evidence.”
However, Plaintiff’s statistical evidence comparing the average age of those selected for the ITS
position to those who were not selected is not compelling for purposes of demonstrating that the
putative class members were victims of a single decision, policy or plan. At a minimum, any
statistical data must show a significant disparity and eliminate the most common
nondiscriminatory explanations for the disparity to create an inference of discrimination. See
Segar v. Smith, 738 F.2d 1249, 1274 (D.C.Cir.1984).
Here, the relevant statistical evidence does not show such a significant disparity. See
Affidavit of Scott Zellner, ECF 20-2. The average age10 of the 104 CRSs prior to the restructuring
was 48.52. The average age of the 97 CRS employees who interviewed for the ITS position was
48.04. The average age of the 79 CRSs who were selected for the ITS position was 46.20 years,
which is only 1.84 years younger than the average age of all CRS interviewees (48.04). Even if
one took the average age of only the 75 CRSs who were selected for the ITS positions by the
Review Committee, which was 45.56, this would only be 2.48 years younger than the average age
of all CRS interviewees (48.04), and only 2.96 years younger than the average age of the 104 CRSs
prior to restructuring (48.52). The average age of the 85 ITS hired was 45.2, which is only 3.32
years less than the average age of the 104 CRS prior to the restructuring (48.52).
10 All average ages were calculated using the ages of the individuals as of March 30, 2015.
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These numbers demonstrate that there was only a slight difference (just 1.84 years) in the
average age of the CRS employees who interviewed versus the CRS employees who were selected,
and the composition of the workforce remained insignificantly changed after the restructuring.
The slight difference in relevant average ages is not significant and is not sufficient to create an
inference of discrimination. See Blizzard v. Marion Tech. College, 698 F.3d 275, 283 (6th Cir.
2012) (age difference of six years or less between an employee and a replacement is not significant
for purposes of creating an inference of discrimination). The disparity here is not so stark
(especially considering the lack of any other evidence to support a discriminatory process) as to
suggest discriminatory bias rather than pure chance or other non-discriminatory explanations. See
O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433
(1996) (“In the age discrimination context ... an inference [of discriminatory intent] cannot be
drawn from the replacement of one worker with another worker insignificantly younger.”).
Plaintiff would have the Court conditionally certify the class based upon a comparison of
the average ages of those selected (his alleged 45.6) versus those who were not (his alleged 56.1).
However, Plaintiff does not take into consideration that the number of individuals in the “those
selected” group far outweigh the number of individuals in the “those not selected” group (79 versus
18), thus rendering a comparison of the average age of the two too attenuated and inaccurate to
support an inference of discrimination on account of age. A higher average age of those who were
not selected is to be expected, considering that 74 of the 97 CRSs who interviewed for an ITS
position were 40 years and above. For these reasons, a comparison between average age of
interviewees versus average age of those selected is more appropriate. Additionally, a comparison
of the workforce of CRSs versus ITSs demonstrates there was an insignificant difference in
average age prior to and subsequent to the restructuring.
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E. Plaintiff has not provided any evidence of “technology experience”, and
the only evidence before the Court is that applicants were actually
credited in the interview process for number of years of employment as
CRSs
As previously explained, Plaintiff’s proposed class is impermissibly vague with respect to
the request for inclusion of CRSs with “greater CRS and technology experience,” which is
undefined. Moreover, the only evidence before the Court regarding “CRS experience,” if that is
to refer to number of years as a CRS, is that CRSs with a greater number of years actually received
a higher number of points in the rubric. ECF 20-1 at ¶ 15. Thus, candidates were given credit for
their experience and longevity as a CRS with the VBCPS, not penalized. Id.
Additionally, Plaintiff has not presented any evidence other than a conclusory allegation
that the proposed class members had “greater technology experience” than those who were hired
for the ITS position. Although he provides alleged years of “technology experience” in his
declaration for those CRSs who were selected (ECF 5-1, ¶ 8), he appears to be basing this off the
information contained in the chart attached to his declaration under the column header
“Tot_Tch_Exp.” However, this is a misreading, as “Tot_Tch_Exp” refers to total teaching
experience, not total technology experience. See ECF 20-1 at ¶ 16. There was no information
before the Interview Panel or Review Committee regarding “technology experience.” The
Interview Questions do not require information regarding “technology experience,” Ex. 5 to ECF
20-1, as “technology experience” was not a factor considered for the new ITS position because
daily tech support work was being separated out in the restructuring and assigned to the TST
positions instead. See TST job description, Ex. 3 to ECF 20-1.
III. Parties should meet and confer over notice before submitting for approval
Defendants object to the proposed notice submitted. Should the Court grant the motion for
conditional certification, the Court should order the parties to meet and confer regarding the
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proposed notice before it is submitted for approval. See, e.g., Choimbol, 475 F. Supp. 2d at 565
(ordering the parties to confer and submit a proposed notice within 30 days). The need to confer
is particularly important here where there are deficiencies in the proposed notice.
“The purpose of the notice is to provide potential plaintiffs with a neutral discussion of the
nature of the action.” Heaps v. Safelite Solutions, LLC, 2011 WL 1325207 at *8 (S.D. Ohio 2011).
Plaintiff has not provided a neutral and complete statement of the legal implications of joining the
lawsuit. Plaintiff has presented the court with a proposed notice which does not present Plaintiff’s
allegations in an unbiased manner, and omits any mention of the inherent risks of opting in or a
fair and balanced explanation of Defendants’ defenses. The notice does not provide claimants
with sufficient facts for them to determine if they are similarly situated to Plaintiff. It does not
make clear that putative class members are those over 40 years of age and who had “greater CRS
and technology experience” than substantially younger, less qualified individuals selected. The
notice does provide a temporal boundary to the proposed class. The notice does not clearly advise
potential claimants that the Court has not ruled on the merits of either party’s position. Further,
any notice should provide Defense counsel information in addition to Plaintiff counsel
information, and make clear that they are entitled to obtain counsel of their own choosing.
Additionally, Plaintiff’s Notice proposes an opt-in period of sixty days. However, most
courts find that an opt-in period of thirty days is appropriate. See, e.g., Gorey v. Manheim Services
Corp., 2010 WL 5866258 at *6 (S.D.N.Y. 2010) (30 days); Cardwell v. Stryden, Inc., 2009 WL
1407760 at *3 (E.D. Pa. 2009) (30 days); Allen v. Marshall Field & Co., 93 F.R.D. 438, 449 (N.D.
Ill. 1982) (30 days); Johnson v. American Airlines, Inc., 531 F. Supp. 957, 962 (N.D. Tex. 1982)
(21 days). A thirty-day opt-in period here would be appropriate so that the case can proceed to
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resolution quickly and especially in light of the fact that there are only allegedly 15 other potential
claimants (excluding Ms. Marcotte and Ms. Gerdes, who filed the “Consent” at ECF 18).
Resolution of these disputes should wait this Court’s decision on conditional certification,
and then only after the parties have met and conferred on the notice or briefed the issue before the
Court if agreement cannot be reached.
IV. Conclusion
For the foregoing reasons, the Court should deny the Motion to Certify.
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2015 Instructional Technology Specialists Interview Questions and Rubric 9
What impressed you the most about this applicant? What concerns you about this applicant? Interviewer_________________________________________________________
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