MICHAEL J. MELLOY, Judge, United States District Court
The named Plaintiffs, Dale Campbell, et al., filed this suit as a potential class action pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., as amended by the Older Workers Benefit Protection Act of 1990 (OWBPA), 29 U.S.C. § 626(f). (Doc. no. 1). Plaintiffs claim that the Defendants, Amana Company, L.P. and Goodman Holding Company, L.P., selected Plaintiffs to be fired in connection with a reduction in force solely on the basis of their age.
Currently before the Court is Plaintiffs' motion for conditional class certification and leave to distribute notice to potential class members, in accordance with 29 U.S.C. § 626(b) and 29 U.S.C. § 216(b). (Doc. no. 26). Defendants oppose the motion, asserting that conditional class certification is not warranted in this case because the proposed class members are not similarly situated nor can they show evidence of a common policy or plan to discriminate. (Doc. no. 35). Oral arguments were heard on December 21, 2000.
Background Facts
Defendants Goodman Holding Company, L.P. ("Goodman") and Amana Company, L.P. ("Amana") are in the business of manufacturing air conditioners and household appliances. In March 1997, Goodman started its due diligence regarding a possible acquisition of Raytheon Appliances, Inc., the predecessor to Amana. The transaction was completed in September 1997, with Goodman becoming the general partner of Amana. (Aff. Clifford J. Reilly, at ¶ 3).
As general partner, Goodman determined that a reorganization was necessary to eliminate duplicate positions and that costs in certain aspects of Amana's business should be reduced through personnel layoffs. (Id. at ¶ 4).
On October 13, 1997, Amana terminated 132 people at its plants in Iowa, Arkansas, South Carolina and Tennessee. Defendants aver that these termination decisions were based on legitimate organizational needs and assessment of individual abilities, uninfluenced by age, race, or other improper bases. According to Defendants, each person selected for termination was individually informed of the decision by his or her direct manager. (Reilly Aff. at ¶ 10). After each individual was notified of the decision, all affected employees were asked to attend a group meeting at which severance packages were discussed. At that meeting, all terminated employees were asked to consider signing a release of any claims against Defendants in exchange for enhanced separation benefits. (Id. at ¶ 10).
Plaintiffs filed this suit as a potential class action on May 27, 1999, alleging that the October 1997 terminations violated the ADEA. Defendants deny any age discrimination, and alternatively asserted that Plaintiffs signed a waiver releasing Defendants from all claims stemming from the termination, including the one brought in this Complaint. In a separate order dated January 4, 2001, this Court held that the waivers were invalid under the OWBPA and thus could not bar Plaintiffs' action under the ADEA.
Discussion Conditional Class Certification
The Age Discrimination in Employment Act (ADEA) mandates, under 29 U.S.C. § 626(b), that its provisions be enforced in accordance with the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). The FLSA, in relevant part, provides that:
An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b). Plaintiffs have brought the current motion in accordance with this statutorily-directed "opt in" procedure,
see Schmidt v. Fuller Brush Co.,
527 F.2d 532, 536 (8th Cir. 1975) (distinguishing ADEA "opt in" class actions under FLSA from standard Rule 23 "opt out" class actions), and seek this Court's permission to notify all potential class members of their option to exercise their rights under the FLSA to opt in to the current action.
In Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), the Supreme Court discussed at some length the court's managerial authority with regard to ADEA class actions and the propriety of court-authorized notice to potential class members in such suits. See id. at 169-74. Finding that district courts have discretion, "in appropriate cases," to facilitate notice to potential plaintiffs, see id. at 169, the Court held that Section 216(b)'s class action mechanism:
must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure. It follows that, once an ADEA action is filed, the court has a managerial responsibility to oversee the joinder of additional parties to assure the task is accomplished in an efficient and proper way.
Id. at 170-71 (internal citations omitted). "By monitoring preparation and distribution of the notice, a court can ensure that it is timely, accurate, and informative. Both the parties and the court benefit from settling disputes about the content of the notice before it is distributed."
Id. at 172. Plaintiffs contend that this action is an "appropriate case" under
Hoffman-La Roche for this Court to exercise its managerial authority with regard to notification of potential plaintiffs. Defendants argue that conditional class certification is not warranted under the facts of this case and that the Court should deny Plaintiffs' motion and hold that this case cannot proceed as a collective action.
The statute and precedent is largely silent as to how the class certification issue should be analyzed. See Hoffman-La Roche, 493 U.S. at 170 (confirming only "the existence of the trial court's discretion [to facilitate notice], not the details of its exercise"). A two-tiered analysis distinguishes between conditional class certification, generally made at the "notice stage," and a final class certification determination made after discovery is largely completed. See, e.g., Thiessen v. General Elec. Capital Corp., 996 F. Supp. 1071, 1080 (D.Kan. 1998). Because the initial conditional certification is based on little or no discovery, the "burden on plaintiffs is not a stringent one," see Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N Y 1997), and conditional certification of a representative class is generally granted. See Thiessen, 996 F. Supp. at 1080. Plaintiffs need merely provide "some factual basis from which the court can determine if similarly situated potential plaintiffs exist." Jackson v. New York Tel. Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) (citations omitted). "[C]ourts have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Hoffman, 982 F. Supp. at 261; accord, Jackson, 163 F.R.D. at 432 ("[A]t this preliminary notice stage, plaintiffs are only required to demonstrate a factual nexus that supports a finding that potential plaintiffs were subjected to a discriminatory scheme."). The more stringent factual inquiry as to whether the plaintiffs are "similarly situated" is made only after a more substantial record has been amassed. See id.
Plaintiffs argue that they have met their burden for conditional class certification and thus the Court should authorize notification of potential class members. Defendants counter that even under such a minimal burden analysis, Plaintiffs have not presented the necessary factual nexus or colorable factual basis to show that a class of similarly situated persons exist. See, e.g., Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D.Minn. 1991) (requiring evidence establishing "at least a colorable basis" for claim that a class of similarly situated plaintiffs exist). Defendants further argue that the two-step process advocated by Plaintiffs is not warranted in a situation such as this where some discovery has already occurred and an ample fact record has been presented on the motion. See, e.g., Theissen, 996 F. Supp. at 1080-81 (after three months discovery and with thirty plaintiffs, case was "clearly beyond the notice stage").
Defendants argue that the submitted record clearly shows that this action, filed nearly a year and a half ago, is beyond the notice stage. Depositions of nearly all named Plaintiffs have been taken, Defendants have responded to two sets of interrogatories, and affidavits in support and opposition to the current motion have been filed by the parties. Defendants argue that this "extensive" record amply and sufficiently demonstrates that prospective class members are not similarly situated and invite this Court to apply a one-step certification analysis to deny class certification in toto.
The Court has thoroughly reviewed the moving papers and the record, and notes merit in both parties' positions. The Court acknowledges Defendants' concerns that the record in this case is beyond that which would warrant the leniency generally given to cases at the notice stage. And, as Plaintiffs conceded at oral argument, there is no evidence in the record to date to suggest disparate treatment and the evidence in support of Plaintiffs' disparate impact claim is inconclusive at best. However, Plaintiffs' hesitation to expend significant resources on discovery efforts before resolution of the release validity issue is not unreasonable. And while it is undeniable that some discovery has occurred, Plaintiffs point out that they have not yet taken any depositions of Defendants or anyone with whom Defendants worked in formulating and implementing their transition and layoff plan. Nor has a discovery dispute been resolved in which Defendants have asserted privilege as to numerous documents requested by Plaintiff concerning that process. Thus, it would seem premature at this stage, and on this record, to declare that Plaintiffs will not, even after reasonable discovery efforts, be able to make a showing that they are similarly situated.
The Court takes seriously its discretionary authority under 29 U.S.C. § 216(b), as interpreted in Hoffman-La Roche, to ensure that joinder of additional parties in an ADEA action is accomplished in an efficient and proper manner. See id. at 170-71. The most appropriate exercise of that discretion in this case falls somewhere between that proposed by either party. In light of the facts and procedural posture of this case, the Court cannot at this time authorize notification of potential class members. This denial of Plaintiffs motion, however, is without prejudice. The release issue has now been resolved, and Plaintiffs are presumably in a more certain position from which to proceed with preparation of their case. It is the Court's understanding that additional discovery is to be undertaken by the parties, and Plaintiffs may, if they so choose, resubmit their motion when the discovery record would better support a determination on its merits.
ORDER
For the reasons discussed herein, it is ordered:
Plaintiffs' motion for conditional class certification and leave to distribute notice to potential plaintiffs (doc. no. 26) is DENIED Without Prejudice.