United States District Court, E.D. Virginia, Norfolk Division
JOSEPH H. ANDREANA, On behalf of himself and all others similarly situated, Plaintiff,
VIRGINIA BEACH CITY PUBLIC SCHOOLS and SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, Defendants.
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs Motion for Conditional Class
Certification pursuant to 29 U.S.C. § 216 (b). ECF Nos.
4-5. Specifically, Plaintiff moves for conditional
certification of an opt-in class of workers who worked for
Defendant as computer resources specialists in March 2015 and
applied for information technology specialist positions
during that period, but were not selected. For the reasons
stated below, Plaintiffs Motion is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
case involves alleged discrimination on the basis of age
against the Virginia Beach Public City
Schools and the School Board of the City of Virginia
Beach.' ECF No. 1. For background, Plaintiff has been an
employee of Defendant for over twenty-eight years and has
primarily worked as a computer resources specialist (CRS).
Id. at 2. In 2015, Defendants reorganized these
positions and informed staff that the CRS positions would be
reduced from Although Plaintiff named the Virginia Beach
Public City Schools and the School Board of the City of
Virginia Beach as Defendants, it is clear to the Court that
Plaintiffs cause of action is against the same entity and
Defendant. Va. Code Ann. § 22.1-28, 71 (West 2018}
(discussing authority and power of school boards to
administer public schools and the ability to sue and be
sued). 104 to 84, and would be replaced with information
technology specialist (ITS) positions. Id. All CRS
employees were required to reapply for employment and the
positions were also publicly posted. Id. at 3.
Plaintiff applied and was not selected for an ITS position.
Id. at 4.
August 13, 2015, Plaintiff filed a complaint with the Equal
Employment Opportunity Commission for age discrimination
against Defendant. ECF No. 12. Subsequently, on November 7,
2017, Plaintiff filed this action under the Age
Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 621 et seq. (West 2018), and seeks
relief from disparate treatment, disparate impact, and
pattern and practice discrimination on the basis of age. ECF
No. 1 at 2. He alleges that Defendant's screening and
evaluation process for the ITS positions discriminated
against candidates based on age and did not evaluate
applicants fairly. Id. at 3. As such, older CRS
employees, including Plaintiff, met all of the required
qualifications for the positions and had more experience, but
were systematically rejected in favor of younger and less
qualified applicants. Id.
November 20, 2017, Plaintiff filed a Motion for Conditional
Class Certification on behalf of himself and others similarly
situated. ECF No. 4. Defendant filed a response in opposition
and Plaintiff filed a reply. ECF Nos. 20, 24. Additionally,
Defendant filed Motions to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(1) and 12(b)(6). ECF Nos. 10, 16.
Plaintiff filed responses in opposition and Defendant filed
replies. ECF Nos. 19, 21, 22, 25. The parties have submitted
memoranda in support of their respective positions, and the
Motion for Conditional Class Certification is now ripe for
ADEA incorporates the collective action procedures and scheme
of the Fair Labor Standards Act ("FLSA"). 29 U.S.C.
§626(b) (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..."). Section
216(b) of the FLSA explicitly provides for representative or
An action to recover the liability prescribed [under the
FLSA] may be maintained against any employer in any Federal
or State court of competent jurisdiction by any one or more
employees for and on behalf of himself or themselves and
other employees similarly situated. No employee shall be a
party plaintiff to [a class] 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) (2008). Thus, FLSA class
certification requires: (1) that the Plaintiffs in the class
be "similarly situated, " and (2) that the
plaintiffs included in the class "opt in" by filing
with the court their consent to the suit. Choimbol v.
Fairfiled Resorts, Inc., 475 F.Supp.2d 557, 562 (E.D.
Va. 2006). Permitting certification is "intended to
serve the important objectives embodied in the FLSA by
facilitating a resolution in a single proceeding of claims
stemming from common issues of law and fact, and to aid in
the vindication of the plaintiffs' rights by lowering the
individuals' costs by pooling claims and resources."
Houston v. URS Corp., 591 F.Supp.2d 827, 831 (E.D.
Va. 2008) (citing Hoffmann-La Roche, Inc. v.
Sperling, 493 U.S. 165, 170(1989)).
initial FLSA class certification commences with conditional
certification, prior to discovery, after a showing that the
putative class members are similarly situated.
Choimbol, 475 F.Supp.2d at 562-63. At this stage in
the proceedings, the district court's determination of
whether to grant conditional certification is "made
using a fairly lenient standard." Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.
1995). This first stage is known as the notice stage.
Id. Here, the district court determines whether
initial notice of the action should be provided to potential
class members. Id. The court need not rely on more
than "substantial allegations that the putative class
members were together victims of a single decision, policy or
plan." D'Anna v. M/A-COM, Inc., 903 F.Supp.
889, 893 (D. Md. 1995). Finally, "the district court may
facilitate this notice by allowing discovery of the names and
addresses of potential plaintiffs, by authorizing a notice
for plaintiffs' counsel to send to potential plaintiffs,
or by some other appropriate action." De Asencio v.
Tyson Foods, Inc., 130 F.Supp.2d 660, 663 (E.D. Pa.
2001) (citing Hoffmann-La Roche, 493 U.S. at 169).
Conditional Certification of an ADEA Collective
moves this Court to conditionally certify the following
opt-in class: "all persons who worked for Defendants as
Computer Resource Specialists in 2015 and applied for
Information Technology Specialists positions in March 2015
but were not selected." ECF No. 4 at 1. Plaintiff argues
that all potential class members are similarly situated
because Defendant employed them as CRS employees during its
reorganization of the CRS positions in March of 2015. ECF No.
5 at 7. In support of the motion, Plaintiff contends the
potential class members were: all over 40; subject to the
reorganization of the CRS positions in favor of ITS
positions; were more experienced in the relevant field than