United States District Court, N.D. California
ORDER GRANTING MOTION TO APPROVE NOTICE OF COLLECTIVE
ACTION AND TO CONDITIONALLY CERTIFY CLASS RE: ECF NO.
TIGAR United States District Judge.
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.
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”).
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.
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.
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.
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.
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.
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.
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.