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K.H. v. Secretary of Department of Homeland Security

United States District Court, N.D. California

July 18, 2016

K.H., et al., Plaintiffs,


          JON S. TIGAR United States District Judge.

         Before the Court is Plaintiffs’ Motion to Approve Notice of Collective Action and to Conditionally Certify Class, pursuant to 29 U.S.C. § 216(b). ECF No. 43. Defendant does not oppose the motion. ECF No. 43. As set forth below, the motion is granted.

         I. BACKGROUND

         Plaintiff K.H. filed this action against Defendant Secretary of the Department of Homeland Security (“DHS”), on June 18, 2015. ECF No. 1. On January 15, 2016, Plaintiffs filed their First Amended Complaint adding numerous additional plaintiffs. A Second Amended Complaint was filed on May 11, 2016. ECF No. 50 (“SAC”).

         A. Plaintiffs’ Allegations

         Plaintiffs K.H., C.V., W.L., and J.M. (“Plaintiffs K.H., et al.”) are over 40 years of age and are Federal Air Marshals (“FAMs”). SAC ¶¶ 4-7. Plaintiffs are employed by the Transportation Security Administration (“TSA”), an agency within the Department of Homeland Security. Id. Plaintiffs Jeffrey Boyer, Brian Pierog, Donna Baxter, Karnel McMahan, Richard DeVivo, Gary McConaghy, and Kristen Pavkovich (“Plaintiffs Boyer, et. al.”) are over 40 years of age and were FAMs in the Federal Air Marshal Service’s (“FAMS”) Pittsburgh Field Office. Id. ¶ 8.

         The TSA targeted the Cincinnati, Cleveland, Phoenix, Pittsburgh, San Diego, and Tampa Field Offices (“selected Field Offices”) for closure. Id. ¶ 13. The TSA targeted these Field Offices because they had the highest percentage of older FAMs; about 90% of the FAMs in each selected Field Office were over 40 years of age. Id. ¶ 14. Although the TSA reassigned the FAMs to other Field Offices, the TSA is making the moves extremely difficult, expensive, unpalatable, and problematic. Id. ¶ 17. Several Plaintiffs were forced to use earned leave as a result of the office closures and others were forced to eventually resign. Id. ¶¶ 25-29. By making these moves challenging for the FAMs, the TSA constructively discharged the FAMs. Id. ¶ 17. The intent of the TSA in closing the selected Field Offices was to force older FAMs from federal service, as the TSA hoped the older FAMs would quit rather than accept mandatory office reassignments. Id. ¶ 15. It has been represented to the older FAMs that the TSA intended to hire two new FAMs to replace each older FAM. Id. ¶ 16. The TSA threatened to terminate the FAMs’ employment if they refused to accept the reassignments. Id. ¶ 18.

         Plaintiff K.H. worked in the Tampa Field Office and his performance was satisfactory or better. Id. ¶¶ 21-22. Yet, on August 19, 2014, K.H. received an email from his supervisor notifying Plaintiff of his reassignment with a memorandum attached from the Regional Director. Id. ¶ 20. The memorandum stated that K.H. had 10 days to decide whether to accept the reassignment and that if K.H. chose not to accept the reassignment, the TSA would terminate his employment. Id. Termination would make K.H. ineligible for certain benefits. Id. K.H. was reassigned to the San Francisco Field Office. Id. ¶ 21. K.H. experienced severe mental and emotional stress associated with the discriminatory closure of the Tampa Field Office. Id. ¶ 24. Prior to the closure, K.H. was constantly under stress about having to uproot himself from Florida and moving across the country to California. Id. K.H. missed out on vacations and placed his life on hold while awaiting the closure. Id. Moreover, K.H. constantly worries that the TSA will find a reason to terminate him from his position in the San Francisco Field Office, because K.H. knows that the TSA wants to terminate him due to his age. Id. The other named Plaintiffs all suffered similar non-compensable damages due to the closures. Id.

         But for Plaintiffs’ ages, they would not have been designated for reassignment from their Field Offices, forced to resign, or terminated. Id. ¶ 35. But for the high percentage of FAMs over 40 in the Cincinnati, Cleveland, Phoenix, Pittsburgh, San Diego, and Tampa Field Offices, the TSA would not have designated those Field Offices for closure. Id. ¶ 36. Plaintiffs allege that named plaintiffs and the similarly situated putative class members were all affected by a similar plan infected by discrimination. Id. ¶ 32. Plaintiffs seeks all available relief under 29 U.S.C. § 626(b) and costs and attorney’s fees. Id. at 6.

         B. Procedural History

         Plaintiff K.H. filed an Equal Employment Opportunity (“EEO”) complaint on July 22, 2014. Id. ¶ 23. One month later, Plaintiff filed an amended EEO complaint. Id. The Equal Employment Opportunity Commission took no action on Plaintiff’s complaints within the 180-day requirement. Id. Plaintiff K.H. filed this claim for relief against the DHS for age discrimination on June 18, 2015, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. ECF No. 1.

         Defendant filed a motion to dismiss and/or strike Plaintiff’s Complaint on September 4, 2015. ECF No. 14. The Court granted in part and denied in part Defendant’s motion. ECF No. 26. The Court dismissed without prejudice Plaintiff K.H.’s claims for lost wages because, “[g]iven that Plaintiff allege[d] he accepted his reassignment to a new TSA office, . . . he has failed to provide any facts that suggest he should be awarded lost wages.” Id. at 5. The Court dismissed with prejudice Plaintiff’s claim for compensatory damages, as well as any claims for “other damages” in Plaintiff’s complaint. Id. The Court denied Defendant’s motion to dismiss and/or strike Plaintiff’s disparate impact claim. Id. at 5-8. Plaintiffs filed their operative FAC on January 15, 2016. DHS filed a second motion to dismiss on February 5, 2016. ECF No. 36. The motion was granted in part and denied in part on April 26, 2016. ECF No. 43.

         Plaintiffs filed the instant motion to approve notice and to conditionally certify the class on April 15, 2016. ECF No. 43. DHS submitted their statement of non-opposition on April 26, 2016. ECF No. 44.

         II. ...

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