Posted December 6th, 2018.
By Danielle Nichole Smith
Law360 (December 6, 2018, 5:33 PM EST) — A Volkswagen employee alleging that the company implemented a policy to shed older workers as part of a rebranding strategy urged a Tennessee federal judge Thursday to order the automaker not to carry out the plan or keep him from advancing in his career.
In his motion for a preliminary injunction, Jonathan Manlove said that he was likely to succeed on his claims that Volkswagen AG illegally created a plan for phasing out workers aged 50 and older to rebrand in the aftermath of its 2015 diesel emissions scandal. Manlove said he and a proposed class of workers would be irreparably harmed if the company wasn’t enjoined from taking adverse actions against them as part of the so-called Pact for the Future.
“It is always our hope that putting an employer on notice of its discriminatory conduct will be enough to prevent a company from engaging in further discriminatory behavior. Unfortunately, that is not always the case, which is why the law allows a court to take swift protective action by stopping the activities of the employer and protecting employees while the case is pending,” Leigh Anne St. Charles, an attorney for the proposed class, told Law360 on Thursday.
“Jon Manlove is a hard worker, he should be allowed to do his job without always looking over his shoulder for the next attempt to drive him out of the company as part of some ‘Pact for the Future’ or punish him for raising legitimate concerns of discrimination,” St. Charles added.
Counsel and representatives for Volkswagen didn’t respond Thursday to requests for comment.
Manlove sued Volkswagen and affiliates in June, alleging that the automaker violated U.S. age discrimination laws by instituting a plan to get rid of management positions held by older employees as part of two related strategic rebranding and labor campaigns — TRANSFORM 2025+ and Pact for the Future. Manlove, who had worked as an assistant manager in a logistics department at Volkswagen, was demoted in June 2017, just days after the company announced its intention to make management younger, according to the complaint.
The complaint said that Manlove was given a year to find another assistant manager position at Volkswagen before his demotion became permanent. But despite positive performance reviews, Manlove was assigned to “remain in position” by human resources and not allowed to apply for openings at the company, the complaint said.
Manlove’s suit was filed on behalf of all Volkswagen employees over the age of 50 in the U.S.
On Thursday, Manlove said that the proposed class was likely to succeed on the claims because the Pact for the Future was a discriminatory and illegal plan explicitly meant to target and get rid of older employees. And he was likely to succeed on his individual claims since there was direct evidence that Volkswagen had discriminated against him based on his age, Manlove added.
Without the injunction, he and the proposed class would suffer irreparable harm, Manlove argued. They could face delayed promotions and loss of job opportunities, harms that the Sixth Circuit has recognized as being injuries that warrant preliminary injunctive relief, Manlove said.
The preliminary injunction motion asked the court to keep Volkswagen from using the Pact for the Future to target or discriminate against workers over 50 and from taking adverse action against Manlove. The motion also requests that Volkswagen reinstate Manlove to his prior position, among other things.
In October, Volkswagen asked the court to send Manlove’s claims to arbitration, contending that he had agreed to arbitrate employment claims. The automaker said that Manlove wrongly attempted to use a carve-out in the agreement allowing parties to seek provisional injunctive relief in court as an “escape hatch from arbitration.”
Manlove was seeking “inefficiency on steroids” by trying to pursue injunctive relief on his age discrimination claim in court and monetary damages on the same claim in arbitration and by wanting to freeze any arbitration proceedings until after the court proceedings concluded, Volkswagen said. Manlove’s litigation plan would undermine the very purpose of arbitration, the company contended.
The proposed class is represented by Kevin Sharp, Leigh Anne St. Charles and Andrew Melzer of Sanford Heisler Sharp LLP.
Volkswagen is represented by Charles B. Lee, Bradford G. Harvey, Megan B. Welton and Jessica Malloy-Thorpe of Miller & Martin PLLC.
The case is 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 Jack Karp.