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Andreana v. Virginia Beach City Public Schools

United States District Court, E.D. Virginia, Norfolk Division

May 9, 2018

JOSEPH H. ANDREANA, On behalf of himself and all others similarly situated, Plaintiff,



         Before 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.


         This 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.

         On 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.

         On 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 judicial determination.


         The 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 class actions:

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)).

         The 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).


         A. Conditional Certification of an ADEA Collective Action

         Plaintiff 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 ...

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