United States District Court, E.D. Virginia, Norfolk Division
JOSEPH H. ANDREANA, et al Plaintiffs,
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 Virginia Beach City Public Schools and School
Board of the City of Virginia Beach's (collectively,
"Defendants") Motion for Decertification. ECF Nos.
90-91. For the reasons stated herein, Defendants' Motion
FACTUAL AND PROCEDURAL HISTORY
action stems from a series of allegations of age
discrimination against Virginia Beach public schools.
Plaintiffs claims that in 2015, Virginia Beach City Public
Schools and the School Board of Virginia Beach
("Defendants") informed all 104 Computer Resource
Specialist ("CRS") employees that the position
would cease to exist, and Defendants would create only
eighty-four Instructional Technology Specialist
("ITS") positions. ECF No. 1 at ¶¶ 9-10.
Defendants allegedly required all former CRSs to reapply to
the new ITS positions, directly competing with other
employees and the general public. Id. Of the 104
former CRSs, ninety-nine of them applied to be ITSs, while
there were 100 other applicants. Id. at ¶ 11.
used a "screening and evaluation process and
policy" in selecting candidates for the ITS positions.
Id. Plaintiffs claim that this process and policy
was willfully discriminatory because it disregarded older
candidates in favor of younger ones. Id. at
¶¶ 12, 26. Plaintiffs allege that Defendants
selected individuals for the ITS position based on age, even
though Plaintiffs allegedly were better qualified and met all
expectations in carrying out their duties as CRSs.
Id. at ¶¶ 16-19. As a result of this
alleged discrimination, Plaintiffs allegedly were forced to
accept positions with Defendants at lower pay or retire.
Id. at ¶¶ 20-22.
Plaintiff Joseph Andreana filed his Complaint for this
collective action on November 7, 2017 and alleged three
claims under the Age Discrimination in Employment Act of 1967
("ADEA"): disparate treatment, disparate impact,
and pattern and practice discrimination. W at ¶¶
9, 2018, the Court issued two Orders in the instant case.
Andreana, ECF Nos. 30-31. In its first Order, the Court
conditionally certified the collective action under 29 U.S.C.
§ 216(b). ECF No. 30 at 8-9. In its second Order, the
Court granted in part Defendant's motion to dismiss after
finding that it did not have subject matter jurisdiction over
the pattern and practice discrimination claim, but keeping
the disparate treatment and disparate impact claims intact.
ECF No. 31 at 6-10. On May 23, 2018, the Court approved
Andreana's collective action notice. ECF No. 32. All
additional plaintiffs needed to file their notices to opt in
by August 21, 2018. See ECF No. 31 at 9. After two
opt-in plaintiffs were dropped from the action, see
ECF Nos. 87, 92, eleven Plaintiffs remain in the collective
action. ECF No. 91 at 2.
March 11, 2019, Defendants filed the instant Motion, which
argues that Plaintiffs are not similarly situated to allow a
collective action under § 216(b) for either their
disparate treatment or disparate impact claims. See
ECF No. 91 at 12-24. Plaintiffs filed a response in
opposition on March 21, 2019. ECF No. 93. Defendants filed a
reply on March 27, 2019. ECF No. 97. Plaintiffs requested a
hearing on this matter. ECF No. 99. The Court finds that the
matter is ripe for judicial determination, and a hearing is
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"). Furthermore,
the Court construes the ADEA to be consistent with FLSA case
law and precedent. EEOC v. Baltimore Cnty., 904 F.3d
330, 334 (4th Cir. 2018), cert, docketed, No. 18-781
(Dec. 19, 2018) ("Because Congress adopted the
enforcement procedures and remedies of the FLSA into the
ADEA, we construe the ADEA consistent with the cited
statutory language in and judicial interpretations of the
FLSA."); Grayson v. K Mart Corp., 79 F.3d 1086,
1096 n.l2 (11th Cir. 1996) ("[I]t is clear that the
requirements for pursuing a § 216(b) [collective] action
are independent of, and unrelated to, the requirements for
class action under Rule 23 of the Federal Rules of Civil
Procedure.") (citing LaChapelle v. Owens IIl.,
Inc., 513 F.2d 286, 289 (5th Cir. 1975)); see
Lorillard v. Pons, 434 U.S. 575, 582 (1978) ("but
for those changes Congress expressly made [in the ADEA], it
intended to incorporate fully the remedies and procedures of
to Section 16(b) of the FLSA, an action may be maintained
against an employer in federal court "by any one or more
employees for and on behalf of himself or themselves and
other employees similarly situated." 29 U.S.C. §
216(b). The collective action mechanism allows for the
efficient adjudication of similar claims so that
"similarly situated" employees, whose claims are
often small and not likely to be brought on an individual
basis, may join together and pool their resources to
prosecute claims of misconduct by their employers. See
Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170
courts within the United States Court of Appeals for the
Fourth Circuit ("Fourth Circuit") have uniformly
employed a two-step inquiry in deciding whether to certify a
collective action under the FLSA:
First, upon a minimal evidentiary showing that a plaintiff
can meet the substantive requirements of 29 U.S.C. §
216(b), the plaintiff may proceed with a collective action on
a provisional basis. Second, following discovery, the court
engages in a more stringent inquiry to determine whether the
plaintiff class is "similarly situated" in
accordance with the requirements of § 216, and renders a
final decision regarding the propriety of proceeding as a
Rawls v. Augustine Home Health Care, Inc., 244
F.R.D. 298, 300 (D. Md. 2007) (internal citations omitted).
The second phase of collective action certification under the
FLSA is often prompted by a defendant's filing of a
motion to decertify, and the Court undertakes a more
"stringent" factual determination as to whether
members of the collective class are, in fact, similarly
situated. See Romero v. Mountaire Farms, Inc., 796
F.Supp.2d 700, 705 (E.D. N.C. 2011) (citing Hippv.
Liberty Nat. Life Ins. Ca, 252F.3d 1208, 1218 (11th Cir.
2001)); Syrja v. Westat, Inc.,756 F.Supp.2d 682,
686 (D. Md. 2010). If, after discovery, it is apparent that
plaintiffs are not similarly ...