Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 1 of 29
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`Benjamin A. Emmert, SBN 212157
`bemmert@littler.com
`LITTLER MENDELSON, P.C.
`50 West San Fernando Street, 7 th Floor
`San Jose, CA 95113
`Telephone: 408.998.4150
`Fax No.: 408.288.5686
`
`LISA A. SCHRETER, pro hac vice
`lschreter@littler.com
`RICHARD W. BLACK, pro hac vice
`rblack@littler.com
`LITTLER MENDELSON, P.C.
`3424 Peachtree Road NE, Suite 1200
`Atlanta, GA 30326
`Telephone:
`404.233.0330
`Facsimile:
`404.233.2361
`
`Attorneys for Defendants
`HP INC. and HEWLETT PACKARD
`ENTERPRISE COMPANY
`
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`DONNA J. FORSYTH, ARUN VATTURI,
`DAN WEILAND, SHAFIQ RAHMAN,
`AND KEVIN M. ALVISO, for and on
`behalf of themselves and other persons
`similarly situated,
`
`Case No. 5:16-CV-04775
`
`DEFENDANTS’ OPPOSITION TO
`PLAINTIFFS’ MOTION FOR
`PRELIMINARY CERTIFICATION
`
`Plaintiffs,
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`v.
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`HP INC. and HEWLETT PACKARD
`ENTERPRISE COMPANY,
`
`Defendants.
`
`
`
`Date: April 15, 2021
`Time: 9:00 a.m.
`Judge: Hon. Edward J. Davila
`Dept.: Courtroom 4 (5th Floor)
`
`
`Fourth Amended Complaint Filed: July 9, 2020
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`DEFENDANTS' OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
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`Case No. 5:16-CV-04775
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`

`

`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 2 of 29
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`I.
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`II.
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`III.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION AND SUMMARY OF ARGUMENT ...................................................1
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`STATEMENT OF ISSUES TO BE DECIDED (L.R. 7-4)...................................................3
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`RELEVANT FACTUAL BACKGROUND........................................................................3
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`A.
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`B.
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`C.
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`D.
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`HP Co. and Defendants Faced Significant Financial Pressures, Causing Them
`To Restructure Their Businesses And Reduce Their Workforces. .............................3
`
`The Named and Opt-In Plaintiffs Are Not Similarly Situated To Each Other In
`Any Material Respect. ............................................................................................6
`
`The Defendants’ ERISA Plans And WFR Forms Are Not Evidence That
`Plaintiffs Are Alike In Any Material Aspect Of Their ADEA Claims. ......................8
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`The Members Of The Broad Nationwide Putative Collectives To Which
`Plaintiffs Seek to Send Notice Are Not Similarly Situated. ....................................10
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`IV.
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`THE APPLICABLE LEGAL STANDARD IS A FLEXIBLE, CASE-SPECIFIC
`APPROACH COMMITTED TO THE COURT’S DISCRETION. ....................................10
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`V.
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`THIS CASE IS NOT APPROPRIATE FOR JUDICIALLY SUPERVISED NOTICE. .......14
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`A.
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`Plaintiffs Fail To Meet Their Burden To Present Evidence That Supports The
`Issuance Of Notice To Any Potential Collective. ...................................................16
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`1.
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`2.
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`3.
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`Defendants’ Respective ERISA Severance Plans Are Not Evidence Of
`An Overarching Plan of Age Discrimination. .............................................16
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`The WFR Decisions Were Individualized, And Plaintiffs Were Not
`Replaced...................................................................................................17
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`Nothing Ties Meg Whitman’s Comments To Any Single WFR
`Decision. ..................................................................................................20
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`B.
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`The Authority Plaintiffs Cite Is Easily Distinguished. ............................................21
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`VI.
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`PLAINTIFFS’ PROPOSED NOTICE CONTAINS LEGAL AND PRACTICAL
`FLAWS THAT IGNORE RIGHTS OF PROSPECTIVE COLLECTIVE MEMBERS
`AND WOULD COMPROMISE THEIR DATA SECURITY. ...........................................23
`
`A.
`
`B.
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`The Proposed Notice Fails To Inform Potential Opt-Ins Of Their Right To
`Obtain Separate Counsel, Litigation Obligations, And Preservation
`Obligations. .........................................................................................................23
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`Any Opt-In Period Should Be Sixty Days At Most And Facilitated By A
`Third-Party Administrator. ...................................................................................23
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`VII. CONCLUSION ...............................................................................................................24
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`
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`
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`i.
`DEFENDANTS' NOTICE OF MOTION AND PARTIAL MOTION TO DISMISS; MEMORANDUM
`OF POINTS AND AUTHORITIES
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`Case No. 5:16-CV-04775
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`

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`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 3 of 29
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`TABLE OF AUTHORITIES
`
`
`Page
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`
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`Cases
`
`Adams v. Inter-Con Sec. Sys.,
`242 F.R.D. 530 (N.D. Cal. 2007) ...................................................................................... 15, 23
`
`Anjum v. J.C. Penney Co.,
`2015 WL 3603973 (E.D.N.Y. June 5, 2015)............................................................................ 23
`
`Barber v. Human Contract, LLC,
`No. 09-cv-964, 2009 WL 10673170 (C.D. Cal. Dec. 11, 2009) ................................................ 23
`
`Bishop v. Petro-Chem. Transp.,
`582 F. Supp. 2d 1290 (E.D. Cal. 2008) ................................................................................... 14
`
`Blau v. Del Monte Corp.,
`748 F.2d 1348 (9th Cir. 1984)................................................................................................... 9
`
`Brubaker v. Ensign Grp.,
`No. 12-cv-929, 2012 WL 12861183 (C.D. Cal. Nov. 7, 2012).................................................. 14
`
`Campbell v. City of Los Angeles,
`903 F.3d 1090 (9th Cir. 2018).......................................................................................... passim
`
`City of Royal Ret. Sys. v. Juniper Networks,
`880 F. Supp. 2d 1045 (N.D. Cal. 2012) ..................................................................................... 4
`
`Coates v. Farmers Group, Inc.,
`No. 15-CV-01913-LHK, 2015 WL 8477918 (N.D. Cal. Dec. 9, 2015) ............................... 21, 22
`
`D’Anna v. M/ACOM, Inc.,
`903 F. Supp. 889 (D. Md. 1995) ............................................................................................. 13
`
`Duffy v. Sodexho, Inc.,
`2006 WL 3025958 (E.D. Pa. Oct. 20, 2006) ............................................................................ 13
`
`E.E.O.C. v. MCI Int’l, Inc.,
`829 F. Supp. 1438 (D.N.J. 1993) ............................................................................................ 19
`
`Edwards v. City of Long Beach,
`467 F. Supp. 2d 986 (C.D. Cal. 2006) ..................................................................................... 14
`
`Freeman v. MedStar Health, Inc.,
`187 F. Supp. 3d 19 (D.D.C. 2016) .......................................................................................... 23
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`Gross v. FBL Fin. Servs. Inc.,
`557 U.S. 167 (2009) ..................................................................................................... 3, 13, 16
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
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`
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`DEFENDANTS' OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
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`ii.
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`Case No. 5:16-CV-04775
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`

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`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 4 of 29
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`TABLE OF AUTHORITIES
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`Hoffmann-La Roche Inc. v. Sperling,
`493 U.S. 165 (1989) ..................................................................................................... 1, 11, 12
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`Page
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`Myers v. Hertz Corp.,
`624 F.3d 537 (2d Cir. 2010) ................................................................................................... 13
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`Pagliolo v. Guidant Corp.,
`483 F. Supp. 2d 847 (D. Minn. 2007).................................................................................. 9, 17
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`Rabin v. PricewaterhouseCoopers LLP,
`No. 16-cv-02276-JST, 2019 WL 9078785 (N.D. Cal. Apr. 9, 2019) ......................................... 22
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`Roberts v. Target Corp.,
`No. CV-12-874-TUC-JGZ, 2013 WL 5256867 (W.D. Okla. Sept. 17, 2013) ............................ 13
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`Rodriguez v. M.J. Bros., Inc.,
`No. 1:18-CV-00252-SAB, 2019 WL 1789686 (E.D. Cal. Apr. 24, 2019).................................. 23
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`Rusis v. Int’l Bus. Machines Corp.,
`Case No. 18-CV-8434 (VEC), 2020 WL 1151322 (S.D.N.Y. Mar. 10, 2020) .................... passim
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`Sanchez v. Sephora USA,
`No. 11-cv-3396, 2012 WL 294575 (N.D. Cal. July 18, 2012) .................................................. 23
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`Silverman v. SmithKline Beecham Corp.,
`No. 06-cv-7272, 2007 WL 6344674 (C.D. Cal. Oct. 15, 2007)................................................. 15
`
`Swales v. KLLM Transp. Servs.,
`985 F.3d 430 (5th Cir. 2021) ...................................................................................... 12, 13, 14
`
`Voss v. Sutardja,
`2015 WL 349444 (N.D. Cal. Jan. 26, 2015) .............................................................................. 4
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`Zurlo v. J&J Air Conditioning,
`No. 16-cv-723, 2016 WL 4088887 (N.D. Cal. Aug. 1, 2016) ................................................... 24
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`Statutes
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`29 U.S.C. § 626(f)(1)(H) ................................................................................................................ 9
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`25
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`29 U.S.C. § 216(b) ......................................................................................................10, 11, 12, 15
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`27
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`28
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
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`
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`DEFENDANTS' OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
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`iii.
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`Case No. 5:16-CV-04775
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`

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`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 5 of 29
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`TABLE OF AUTHORITIES
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`Page
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`Other Authorities
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`29 C.F.R. § 2510.3-1(a)(3) ............................................................................................................. 8
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`L.R. 7-4 ......................................................................................................................................... 3
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
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`
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`DEFENDANTS' OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
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`iv.
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`Case No. 5:16-CV-04775
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`

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`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 6 of 29
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`I.
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`INTRODUCTION AND SUMMARY OF ARGUMENT
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`In their motion, five named Plaintiffs ask this court to facilitate notice that would expand this
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`case to include members of two separate nationwide collectives under the Age Discrimination in
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`Employment Act (“ADEA”) of former employees at two separate publicly traded Fortune 100
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`companies – HP Inc. and Hewlett Packard Enterprise Company (“HPE”) – who were terminated as
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`part of hundreds of varying and distinct workforce reductions (“WFRs”) over many years. The two
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`proposed collectives would be comprised of hundreds of former HP Inc. and HPE employees who
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`were supervised by hundreds of different managers, worked in different geographies and business
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`units, and were selected for WFR over up to a six-year period by hundreds of different decisionmakers
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`making individualized decisions. Plaintiffs have not met their burden to establish they are similarly
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`situated to one another or to the members of the putative collectives as to any issue of law or fact
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`material to the disposition of their collective claims.
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`Indeed, without relying on a single case analyzing the propriety of collective notice under the
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`ADEA in the context of a workforce restructuring, Plaintiffs’ motion suggests that court-authorized
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`notice should issue because they survived a motion to dismiss. That, however, is not the standard. The
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`Supreme Court has made clear that court-authorized notice is permitted only if it would foster the
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`“efficient resolution in one proceeding of common issues of law and fact arising from the same alleged
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`discriminatory activity.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). Before notice
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`may issue, Plaintiffs bear the burden of demonstrating they are similarly situated to each other and the
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`collectives they seek to represent. To establish they are similarly situated, the Ninth Circuit requires
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`that Plaintiffs present some evidence that they are “alike with regard to some material aspect of their
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`litigation.” Campbell v. City of Los Angeles, 903 F.3d 1090, 1114 (9th Cir. 2018) (emphasis in
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`original). Plaintiffs have presented no such evidence in support of their motion.
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`Plaintiffs instead principally rely on what they have artificially dubbed “the WFR Plan” and
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`form documents in their effort to try to create a common unifying practice resulting in their respective
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`terminations. Upon closer examination, however, the WFR Plans are nothing more than Defendants’
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`respective legally-required ERISA severance benefit plan documents specifying the severance offer
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`that an employee terminated in a WFR will receive regardless of age. These plans do not define how
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`
`
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`
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`1.
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
`
`Case No. 5:16-CV-04775
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`

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`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 7 of 29
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`or why any employee is to be terminated. Rather, they define the severance available to employees of
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`any age terminated in a WFR. The ERISA severance plan documents are a far cry from the sort of
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`unifying policy or practice resulting in age discrimination against older workers that Plaintiffs
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`represent them to be, and they do not establish that any Plaintiff is similar to another with regard to
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`his or her termination. Likewise, the form documents Plaintiff s received at the time of their WFRs
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`establish nothing more than that similar form documents were used. In short, none of the documents
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`submitted by Plaintiffs advances their effort to establish they are similarly situated in any way material
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`to the resolution of their claims.
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`Plaintiffs also attempt to rely on allegations in their Fourth Amended Complaint (“Complaint”)
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`that mischaracterize comments by Meg Whitman, former Hewlett-Packard Company (“HP Co.”) CEO
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`and HPE CEO. Ms. Whitman’s comments say nothing about the WFR selections which are the heart
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`of Plaintiffs’ ADEA claims. Plaintiffs allege that Ms. Whitman orchestrated a plan to eliminate older
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`workers via WFRs to replace them one-for-one with younger workers. Implicit in their theory is the
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`notion that these WFRs were not economically necessary. But, Plaintiffs ignore the well-documented
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`economic headwinds and the dramatic changes in the technology sector that led HP Co. to restructure
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`its entire business in an effort to ensure the company’s survival. Plaintiffs also ignore the separation
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`of HP Co. into HP Inc. (formerly known as HP Co.) and HPE – each with distinct businesses pursuing
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`their own employment and business practices. Indeed, in 2016, HPE further divested its Enterprise
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`Services business, the subject of Ms. Whitman’s comments. Following Meg Whitman’s tenure at HP
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`Co., HP Inc. has had two successive CEOs whose combined tenure spans more than five years . HPE,
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`following Ms. Whitman’s tenure, has had a successive CEO for more than three years. As a result,
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`Ms. Whitman’s alleged 2013 and 2015 comments fail to provide a unifying policy or practice that
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`spans the proposed collectives.
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`Critical to this motion, Plaintiffs offer no evidence that Ms. Whitman or her comments played
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`a role in any individual WFR selection, and certainly not their own. Nor do Plaintiffs provide any
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`evidence relating to the circumstances of their individual WFR selections, or that otherwise links any
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`one Plaintiff to another in terms of any purported common policy or plan that they claim resulted in
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`their terminations. In short, Plaintiffs have offered nothing to demonstrate that their legal claims –
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`
`
`
`
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`2.
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
`
`Case No. 5:16-CV-04775
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`

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`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 8 of 29
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`under which they must prove that age was the “but for” cause for their termination – can be shown
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`through any type of common evidence. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 180 (2009)
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`(ADEA plaintiff must prove “that age was the ‘but-for’ cause of the challenged adverse employment
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`action”.) Rather, the only material evidence before the Court shows Plaintiffs’ dissimilarities. Inviting
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`additional individuals to join this action would only require intensive examination of the facts and
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`circumstances of each employee’s departure from one of two distinct companies – decisions that are
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`not susceptible to common proof. Such inquiries are at odds with the “similarly situated” standard and
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`the U.S. Supreme Court’s directive regarding the issuance of court-supervised notice. Plaintiffs have
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`failed in their burden to establish they are similarly situated in any respect material to the outcome of
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`the litigation, and their motion should be denied.
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`II.
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`STATEMENT OF ISSUES TO BE DECIDED (L.R. 7-4)
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`The following issues are raised by this motion:
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`1. Whether Plaintiffs have satisfied their burden to establish that they are similarly situated
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`to each other and to the members of the putative ADEA collectives they seek to represent in a respect
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`material to the outcome of their claims, such that this Court should formally facilitate notice expanding
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`this case to include members of two separate ADEA collectives against two separate defendants.
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`2. Whether, if notice is authorized, the court should require: (a) the more commonly used
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`60-day opt-in period; (b) the inclusion of language in the notice notifying potential opt-ins of their
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`right to obtain separate counsel, litigation obligations, and preservation obligations ; and (c) the use of
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`a third-party administrator to ensure the security of all data relating to Defendants’ former employees.
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`III. RELEVANT FACTUAL BACKGROUND
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`A.
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`HP Co. and Defendants Faced Significant Financial Pressures, Causing Them To
`Restructure Their Businesses And Reduce Their Workforces.
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`Plaintiffs’ operative theory in support of their age discrimination claims is that, under the
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`direction of Meg Whitman, HP Co. – and later HP Inc. and HPE – eliminated older workers to replace
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`them with younger workers. This theory ignores the context HP Co. faced in 2014, and cannot explain
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`termination decisions occurring at HP Inc. and HPE today.
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`It has been widely chronicled that the HP Co. that Meg Whitman inherited in September 2011
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`
`
`
`
`
`3.
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
`
`Case No. 5:16-CV-04775
`
`

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`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 9 of 29
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`was a company in crisis. During the 2000s, HP Co. was confronted with the tech bubble burst, a
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`recession, a dramatic decline in its share value, revolutionary changes in the technology sector, and a
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`rapid succession of CEOs with different visions for direction of the company. 1 While HP Co. stabilized
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`in some ways under the leadership of former CEO Mark Hurd (through August 2010), it did so only
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`through “ferocious cost cutting” measures and growth through widely criticized acquisitions that left
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`the company cash poor and with facilities needing repair. See, e.g., 2005 HP Co. Form 10-K, pp. 23,
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`43, 60, 87–89; 2006 HP Co. Form 10-K , pp. 24, 46, 95–97; 2007 HP Co. Form 10-K, pp. 25, 98–101;
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`2008 HP Co. Form 10-K, pp. 26, 106–109; 2009 HP Co. Form 10-K, pp. 27, 106–107.2
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`During the 11-month tenure of HP Co.’s next CEO, Leo Apotheker, from November 2010
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`through September 2011, the company repeatedly cut its financial outlook and the value of its stock
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`plummeted 47%. (See Black Decl. Ex. A.) It was earning a large portion of its revenue from personal
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`computers and printers when the PC industry was stagnant, its printer business had been slumping,
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`and cloud computing and mobile tablets were becoming the f ocus of industry innovation. See 2010
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`HP Co. Form 10-K, p. 16. While HP Co. attempted to enter the smart phone/tablet market through its
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`purchase of Palm in 2010 for $1.8 Billion, Mr. Apotheker planned a dramatic pivot for the company,
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`announcing on August 18, 2011 that HP Co. would: (1) end production and support for Palm devices;
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`(2) consider the sale of its PC business; and (3) acquire the software company, Autonomy. See 2010
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`HP Co. Form 10-K, p. 98; 2011 HP Co. Form 10-K, p. 100. Thirty-six days later, on September 22,
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`2011, HP Co. announced that its Board had voted Mr. Apotheker out and that Ms. Whitman would
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`take over as HP Co.’s new President and CEO. HP Co. Form 8-K, p. 2 (Sept. 22, 2011). In November
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`2012, HP Co. announced that it was writing down the value of Autonomy by $8.8 Billion. 2012 HP
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`Co. Form 10-K, p. 32.
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`
`1 See Scanlon, Jessica, “What Happened to HP: A Look Back at a Giant’s Decline”, TECHRADAR
`(Aug. 27, 2017) (attached as Ex. A to Declaration of Richard W. Black (“Black Dec l.”)); Bandler,
`James & Burke, Dorris, “How Hewlett-Packard Lost Its Way,” FORTUNE (May 8, 2012) (attached as
`Black Decl., Ex. B.)
`2 HP Co., HP Inc. and HPE 10-K and 8-K filings cited herein are properly subject to judicial notice
`because they are “true and correct cop[y] of [an] SEC filing[] in the public record not subject to
`reasonable dispute.” Voss v. Sutardja, 2015 WL 349444, at *5 (N.D. Cal. Jan. 26, 2015); see also City
`of Royal Ret. Sys. v. Juniper Networks, 880 F. Supp. 2d 1045, 1059 (N.D. Cal. 2012). A Request for
`Judicial Notice of these filings, attached as exhibits to the Declaration of Lisa A. Schreter, is filed
`concurrently herewith.
`
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`4.
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
`
`Case No. 5:16-CV-04775
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`

`

`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 10 of 29
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`As Ms. Whitman later explained, HP Co. needed a turn-around. Starting with her arrival, HP
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`Co. took action to restructure its businesses, to reignite innovation, to develop cutting-edge technology
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`and services, to reduce long-term debt, and to better align its cost structure with incoming revenues.
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`2012 HP Co. Form 10-K, pp. 16–18. Only one cost-cutting measure included employee WFRs.
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`More than two years into its turn-around, HP Co. announced in October 2014 that it would
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`separate into two Fortune 100 companies to create value for customers and partners. Bradley, Diana
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`“HP Split Will Unlock Value for Customers and Partners, CEO Says,” PR WEEK (Oct. 6, 2014)
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`(attached as Black Decl., Ex. C.) On November 1, 2015, HP Co. retained its printer and PC business
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`and changed its name to HP Inc., and on the same date spun off a new entity, HPE, as an independent
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`and separate publicly traded company that took with it the enterprise products, software, and services
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`businesses. (Doc. No. 389 at ¶¶ 22–24.)
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`Following this split, HPE continued to evolve and refocus. In addition to WFR activity, HPE
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`spun off its entire Enterprise Services business in April 2017, and its software business in September
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`2017. 2017 HPE Form 10-K, p. 2. Accordingly, by fall 2017, the HPE workforce had changed
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`significantly. HP Inc., too, continued to change in response to market pressures. With the
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`announcement of Q4 earnings in 2015, HP Inc. lowered its guidance, indicating that it was facing
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`additional economic headwinds, and announced it would remove an additional $1 billion in costs from
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`its cost structure. 2015 HP Inc. Form 10-K, pp. 29, 113; HP Co., Fourth Quarter 2015 Earnings
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`Conference Call (Nov. 24, 2015) (attached as Black Decl., Ex. D.)
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`Plaintiffs’ allegations must be assessed in light of the actual business circum stances that the
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`Complaint and their motion ignore. Implicit in Plaintiffs’ allegations is the premise that WFRs were
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`not necessary and were only carried out to replace existing, older workers with younger ones. In fact,
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`from 2012 to 2015, HP Co.’s workforce declined by 13.5%. (Compare 2012 HP Co. Form 10-K, p.
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`15 with 2015 HP Co. Form 10-K, p. 17.) From 2016 through 2020, HP Inc.’s workforce declined by
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`8.1% while HPE’s workforce declined by a massive 69.5%, driven in part by significant corporate
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`restructuring and streamlining. (Compare 2016 HP Inc. Form 10-K, p. 11 (noting global headcount of
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`49,000 employees) with 2020 HP Inc. Form 10-K, p. 9 (noting global headcount of 53,000 employees);
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`and Compare 2016 HPE Form 10-K, p. 10 (noting global headcount of 195,000 employees) with 2020
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`
`
`
`
`
`5.
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
`
`Case No. 5:16-CV-04775
`
`

`

`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 11 of 29
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`HPE Form 10-K, p. 3 (noting global headcount of 59,400 employees.)) While the opening paragraphs
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`of the Complaint allege that, in 2012, Ms. Whitman “began consciously, intentionally and deliberately
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`implementing a company-wide initiative to replace thousands of existing, older workers with new,
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`younger employees,” these alleged statements attributed to Ms. Whitman are taken out of context. As
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`is clear from the excerpts in the Complaint, Ms. Whitman’s statements were about HP Co.’s Enterprise
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`Services business, which was part of HPE at separation and then divested by HPE in 2017. Ms.
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`Whitman’s statements do not state or imply that any employee should be selected for WFR because
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`of his or her age, and Plaintiffs have provided no contrary evidence.
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`Plaintiffs concede Ms. Whitman stepped down as CEO of HP Inc. effective November 1, 2015,
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`and as the CEO of HPE effective February 1, 2018. (Doc. No. 389 at ¶¶ 3-8, 29.) While Plaintiffs
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`further allege Ms. Whitman exercised control over employment practices at HP Inc. after November
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`1, 2015 and at HPE after February 1, 2018, that allegation is dubious and they provide no evidence
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`supporting it. The assertion that Ms. Whitman was the Chair of the Board of Directors of HP Inc. does
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`not alone plausibly establish that she could have controlled the employment practices at HP Inc. after
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`stepping down as CEO, much less after she departed HP Inc.’s Board on July 26, 2017. Similarly, the
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`conclusory allegations that Ms. Whitman was the CEO of HPE until February 1, 2018, and the Chair
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`of HPE’s Board until February 1, 2019 do not plausibly establish that she controlled the employment
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`practices at HPE at any time after February 1, 2018.
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`B.
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`The Named and Opt-In Plaintiffs Are Not Similarly Situated To Each Other In
`Any Material Respect.
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`The five named and 31 opt-in plaintiffs are not similarly situated regarding any material aspect
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`of the litigation. Both their employment circumstances and WFRs varied significantly. They worked
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`for two separate companies across 17 states and with 29 different job titles. They each were selected
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`for termination over more than a three-year period. None reported to Ms. Whitman. None of them
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`attempts to tie his or her termination to Ms. Whitman’s comments or the initiatives she identified. In
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`fact, the few Plaintiffs who submitted virtually identical declarations do not even address the roles
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`their unique, respective managers played in their terminations, whether th eir managers knew about
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`Ms. Whitman’s alleged comments, or whether their individual managers acted on the alleged plan to
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`LITTLER MENDELSON, P.C.
`50 W. San Fernando, 15th
`Floor
`San Jose, CA 95113.2303
`408.998.4150
`
`
`
`
`
`
`6.
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
`
`Case No. 5:16-CV-04775
`
`

`

`Case 5:16-cv-04775-EJD Document 414 Filed 02/23/21 Page 12 of 29
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`eliminate older workers.
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`Moreover, while Plaintiffs have alleged on information and belief that they were replaced with
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`younger employees, they have not identified a single such instance, and no younger replacement has
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`been identified by name. As a result, none of the evidence provided by Plaintiffs shows age was the
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`“but for” cause for their terminations or that they are similarly situated for purposes of authorizing
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`notice. In short, Plaintiffs have offered no evidence that they are similar in any material aspect of their
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`employment or termination.
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`A handful of examples confirms their dissimilarity – their titles are different, their managers
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`are different, their locations are different, and the circumstances of their selections for WFR are
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`different. They are alike in only two respects: age did not play a factor in their selection and, after
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`termination, they were not replaced.
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`• Named Plaintiff Donna Forsyth last worked for HPE in Bellevue, Washington as a
`Manager Business Operations II in HPE’s Global Corporate Services (“GSC”) Capabilities
`Team. She reported to Steve Robertson, who in turn reported to Gary Angelo, the Chief of
`Staff and Operations Director for GSC Real Estate and Procurement. Mr. Angelo selected Ms.
`Forsyth for inclusion in a WFR, and she was notified of her selection in February 2016.
`(Declaration of Gary Angelo at ¶¶ 8, 14.) Mr. Angelo identified Ms. Forsyth because HPE
`planned to relocate her position to Fort Collins, Colorado consistent with HPE’s hub strategy.
`(Id. at ¶¶ 8-13.) When Mr. Angelo selected Ms. Forsyth for WFR, he was not aware of any
`comment by Ms. Whitman suggesting age should be taken into account in any WFR selection,
`age played no role in Ms. Forsyth’s selection, and Ms. Forsyth was not replaced. (Id. at ¶ 18.)
`
`• Named Plaintiff Shafiq Rahman last worked for HPE in Houston, Texas as an
`Electrical/Hardware Engineer VI in HPE’s Apollo Engineering Organization. At the time of
`his WFR in July 2016, Mr. Rahman reported to Engineering Manager IV Scott Kogut.
`(Declaration of Scott Kogut at ¶ 4.) Mr. Kogut selected Mr. Rahman for WFR based on a
`comparative assessment of his skills and performance against a more senior peer in his group
`who performed the same kind of work as well as work in other skill areas and mentoring. (Id.
`at ¶¶ 6-8.) Though Mr. Kogut was aware of certain comments attributed to Ms. Whitman
`regarding hiring, but he did not consider those comments when he selected Mr. Rahman, no
`one ever instructed him to consider age in making WFR decisions, and age played no role in
`Mr. Rahman’s WFR selection. (Id. at ¶¶ 10-11). Mr. Rahman was not replaced. (Id. at ¶ 9.)
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`• Named Plaintiff Arun Vatturi last worked for HP Inc. in Palo Alto, California as a Lean
`Six Sigma Blac