VW Says Worker Must Arbitrate ‘Rebranding’ Age Bias Claims

Posted October 31st, 2018.

As It Appeared On
Law360

By John Petrick

Law360 (October 31, 2018, 10:06 PM EDT) — A Volkswagen AG manager who filed a putative class action in Tennessee federal court alleging he and others like him were unfairly demoted as part of a rebranding strategy is bound by an arbitration agreement he signed when hired, the automaker said Tuesday.

While plaintiff Jonathan Manlove points to an “escape hatch” in the agreement that in rare instances allows a plaintiff to seek “provisional injunctive relief” absent arbitration, that’s hardly what’s being sought here, Volkswagen maintains in a motion filed Tuesday, seeking dismissal of the suit.

Manlove demands a jury, despite his “express waiver” of any right to a jury trial in the arbitration agreement he signed; certification of a statutory opt-in class, despite the arbitration agreement barring class actions; and a final order on the merits, despite his agreement when hired that all disputes be resolved by final and binding arbitration, according to the motion.

“What plaintiff seeks is inefficiency on steroids,” Volkswagen’s motion states. “Plaintiff’s litigation plan would render the arbitration agreement meaningless and undermine the very purpose of arbitration.”

Volkswagen accuses Manlove of looking to freeze arbitration until all court proceedings are finished — full merits discovery, class notice, class discovery, collective certification procedures, a final order on the merits and appeals. Yet he ignores case law, which Volkswagen cites in the motion and says it has also already cited in pre-motion proceedings, that specifically rejects such sidestepping, according to the motion.

“Rather, he simply plowed ahead with his plan to block arbitration while he engages in protracted litigation on a class basis to a final order on the merits in court,” the motion states.

Volkswagen initiated a policy to oust older employees from the company as part of a rebranding strategy in the wake of the company’s 2015 diesel emissions scandal, the 53-year-old Manlove said in his complaint filed in June.

Manlove alleges that Volkswagen attempted to deflect attention from the fallout of the so-called Dieselgate scandal with the creation of two campaigns — one a rebranding, and the other the elimination of management positions held by older employee in violation of the Age Discrimination in Employment Act and other laws, according to the complaint.

Volkswagen’s plan to eliminate the older employees was acknowledged in the company’s own press releases discussing its strategies, the complaint said, in which it was announced it would be using early retirements and “natural fluctuations” to get rid of older workers to become “slimmer, leaner and younger,” according to the complaint.

Leigh Anne St. Charles of Sanford Heisler Sharp LLP, an attorney representing the plaintiff, said the arbitration agreement is written the way it is for a reason. “Our position remains that Volkswagen drafted an express carveout for injunctive relief in its arbitration agreement, and Mr. Manlove is exercising his right to seek injunctive relief from discriminatory practices in federal court. Court proceedings will provide expedient injunctive relief from Volkswagen’s corporate policy and plan to phase out older workers as a class,” she said.

Counsel for Volkswagen did not immediately respond to requests for comment Wednesday. A representative of Volkswagen could not immediately be reached.

Volkswagen GA is represented by Charles B. Lee, Bradford G. Harvey, Megan B. Welton and Jessica Malloy-Thorpe of Miller & Martin PLLC.

Jonathan Manlove is represented by Andrew Melzer, Kevin H Sharp and Leigh Anne St. Charles of Sanford Heisler Sharp LLP.

The case is Jonathan Manlove v. Volkswagen Aktiengesellschaft et al., case number 1:18-cv-00145, in the U.S. District Court for the Eastern District of Tennessee.

–Editing by Pamela Wilkinson.

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