VW Workers Get Narrowed Collective OK’d In Age Bias Suit

Posted June 11th, 2019.

As It Appeared On
Law360

By Braden Campbell

Law360 (June 11, 2019, 5:47 PM EDT) — A Tennessee federal judge gave a green light Tuesday to a collective action accusing Volkswagen AG of discriminating against older employees, but rejected the workers’ bid for a nationwide collective and instead limited the suit’s scope to VW’s Chattanooga facility.

U.S. District Judge Travis McDonough partially granted worker Jonathan Manlove’s motion for conditional certification of his Age Discrimination in Employment Act claims, saying he offered enough evidence to suggest Volkswagen’s so-called Pact for the Future laid out a policy favoring younger workers.

“Manlove has plausibly alleged that the pact constitutes a unified policy of age discrimination that applies to Volkswagen employees in the United States,” Judge McDonough said. But the judge said Manlove can’t press collective claims nationwide because the evidence he offered of specific acts taken against older workers covers only the Chattanooga plant, where he works.

Manlove sued Volkswagen and affiliates last 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. In addition to claiming Volkswagen discriminated against older workers under the ADEA, Manlove asked the court for an injunction blocking the policies.

Manlove is pressing his injunction bid in tandem with an arbitration seeking damages after an arbitrator said in February that Volkswagen’s agreements with workers to resolve employment claims in arbitration carve out their rights to “injunctive relief in a court of competent jurisdiction.” He moved for conditional certification of a nationwide collective in March.

Volkswagen had asked for oral argument on Manlove’s bid for certification, citing among other things the “unprecedented bifurcated forum case structure” of the dispute. But this bifurcation was by Volkswagen’s design, Judge McDonough said, and he ruled based on the parties’ motion papers.

Manlove asked Judge McDonough to certify a collective of all U.S. Volkswagen workers over age 50, arguing that the pact lays out a companywide policy of age discrimination. In his motion, he pointed to Volkswagen’s plan to cut 7,000 U.S. jobs and its CEO’s comments that the company would get “slimmer, leaner and younger.”

Volkswagen argued Manlove hasn’t challenged the sort of “single discriminatory policy, plan, or scheme” that workers must show affected their proposed collective to win certification. Judge McDonough disagreed, saying the pact represents a “unified policy” affecting the proposed members, possibly in a way that violates the ADEA.

And Manlove has offered specific examples of possible age-based mistreatment of workers at the Chattanooga plant, Judge McDonough said. The judge recounted allegations by a handful of workers, including Manlove, that they were denied promotions, demoted or fired because of their age. But because that evidence is limited to the Chattanooga plant, the claims must be as well, the judge said.

“In sum, Manlove has made a modest showing that Volkswagen Chattanooga and Volkswagen America employees over fifty within Chattanooga are similarly situated but has not shown that the pact has comparably impacted Volkswagen employees over fifty in the United States outside Chattanooga,” Judge McDonough said.

Manlove is also pressing class claims under the Tennessee Human Rights Act but has not yet moved for certification for those claims.

Kevin Sharp of Sanford Heisler Sharp LLP, who represents the workers, called Judge McDonough’s decision “a welcome reminder to workers at Volkswagen that they have the power to join together in the face of age discrimination.”

“Based on our ongoing investigation, we remain convinced that Volkswagen’s discriminatory pact was not limited to workers in Chattanooga, and are confident that the evidence will bear this out,” he said in a statement.

Attorneys for Volkswagen did not immediately respond Tuesday to a request for comment.

The workers are 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 and Michael W. Johnston and Rebecca Cole Moore of King & Spalding LLP.

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

–Additional reporting by Danielle Nichole Smith. Editing by Orlando Lorenzo.

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