Case 5:16-cv-04775-EJD Document 423 Filed 04/13/21 Page 1 of 15
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`DONNA J. FORSYTH, et al.,
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`Plaintiffs,
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`v.
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`HP INC., et al.,
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`Defendants.
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`Case No. 5:16-cv-04775-EJD
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`ORDER GRANTING PLAINTIFFS’
`MOTION FOR PRELIMINARY
`CERTIFICATION
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`Re: Dkt. No. 409
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`This is a putative collective action against Plaintiffs’ former employers, HP Inc. (“HPI”)
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`and Hewlett Packard Enterprise Company (“HPE”) (collectively “Defendants” or “HP”), alleging
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`in part violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et.
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`seq. See Fourth Amended Complaint (“FAC”) ¶¶ 133-44, 145-56, Dkt. No. 389. Before the Court
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`is Plaintiffs’ motion for an order preliminarily certifying two collectives under the Fair Labor
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`Standards Act, 29 U.S.C. § 216(b), for production of contact information of potential opt-in
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`plaintiffs, and for approval of notice to the members of the collectives. (“Mot.”), Dkt. No. 409.
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`An opposition (“Opp.”) was filed by Defendants, to which Plaintiffs have replied (“Reply”). See
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`Dkt. Nos. 414, 416. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate
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`for resolution without oral argument and therefore VACATES the hearing currently scheduled for
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`April 15, 2021. Based on the reasoning below, the Court GRANTS Plaintiffs’ motion for
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`preliminary certification.
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`I. BACKGROUND
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`The five named Plaintiffs allege Defendants violated the ADEA and California laws by
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`targeting older employees and replacing them with younger employees. Plaintiffs allege that in
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`2012 HPI (then Hewlett-Packard Company (“HP Co.”)), under the direction of Meg Whitman,
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`Case No.: 5:16-cv-04775-EJD
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`began to implement a company-wide multiyear restructuring initiative designed to make the
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`company younger by replacing thousands of existing, older workers with new, younger
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`employees. FAC ¶ 3. This initiative was referred to as the “Workforce Restructuring Initiative.”
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`Id. When rolling out this initiative, Whitman said the goal was to “recalibrate and reshape” the
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`workforce. Id. ¶ 4. In Plaintiffs’ view, through this statement, Whitman made it known that she
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`regarded the age of HP’s workforce as a problem that needed solving. Id. ¶ 13. Indeed, in
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`October 2013, Whitman publicly stated during a Securities Analysts meeting that the Workforce
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`Restructuring Initiative’s goal was to “recalibrate and reshape” the company’s workforce by
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`“replacing” existing workers with “a whole host of young people.” Id. ¶¶ 3-4, 30. In order to
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`execute the Workforce Restructuring Initiative, Whitman caused HP Co. to implement a two-
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`pronged strategy that involved (1) pushing current, older workers out of the company, while (2)
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`hiring large numbers of new, younger employees to replace them. Id. ¶ 11.
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`In November 2015, HP Co. split into two companies, HPI and HPE. Id. ¶ 5-8, 11. After
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`the split, Whitman served as the Chair of the Board of Directors for HPI until July 26, 2017 and as
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`the CEO for HPE until February 1, 2018 and also served on the board of HPE until February 1,
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`2019. Id. During her tenure at HPI and HPE, both companies allegedly continued to implement
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`the age initiative in concert with one another, shedding thousands of additional employees. Id. ¶
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`6. Hence, according to Plaintiffs, all three HP entities shared the common goal of wanting to
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`make the entire HP organization younger. Id. ¶ 7. Further, all three entities shed thousands of
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`older workers, while aggressively recruiting and hiring younger employees to replace them. Id.
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`To execute the first prong of the Workforce Restructuring Initiative, HP Co. initiated the
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`“2012 Workforce Reduction Plan” (“WFR”), which was then adopted by both HPI and HPE and
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`was implemented over a period of years. Id. ¶ 11. However, contrary to the name, the WFR was
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`not meant to reduce the HP workforce, but was a means to restructure, recalibrate, and reshape the
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`HP workforce to make it younger. Id. ¶¶ 12, 30–34. This, Plaintiffs contend, is confirmed by
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`Whitman’s public statements, in which Whitman made clear that she intended to make both HPI
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`and HPE “younger.” Id. ¶ 12. Whitman also admitted that HP was “amping up [its] early career
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`hiring, [and] [its] college hiring.” Id. ¶ 30. Meanwhile, according to Plaintiffs, HPI and HPE
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`were terminating thousands of existing employees pursuant to the WFR. Id. ¶ 6. When replacing
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`employees that were terminated under the WFR, Whitman acknowledged that HP had an
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`“informal rule” requiring managers to “really think” about hiring a younger “early career”
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`employee. Id. ¶ 30. Indeed, internal HP Co. documents dated July 2015 stated that anyone born
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`between 1930 and 1946 could be considered a “Traditionalist” who moves “slow and steady” and
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`seeks “part time work.” Id. ¶ 59. “Baby Boomers” (born between 1946 and 1964) were
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`considered to be “rule breakers,” which implies that they were “undesirable.” Id. “Millennials,”
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`on the other hand were highly desirable and HP Co. specifically adopted strategies for
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`“integrat[ing] millennials into the workforce” and “educat[ing] managers and others on millennial
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`characteristics.” Id. Plaintiffs allege these policies were carried forth at HPI and HPE. See infra.
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`Plaintiffs assert that the Workforce Restructuring Initiative has continued for years. In
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`September 2015, Whitman stated that HP still needed to “fundamentally recreate the labor
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`pyramid” because the pyramid looked too much like “a diamond” and it needed to look “like a
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`quite flat triangle to be competitive.” Id. ¶ 31. In November 2015, just as Whitman was preparing
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`to take on senior leadership roles at HPI and HPE, Whitman confirmed in an interview that the
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`goal for HPI and HPE was to higher younger employees to replace laid-off employees. Id. ¶ 32
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`(“[T]o make sure that we’ve got a labor pyramid with lots of young people coming in right out of
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`college and graduate school and early in their careers. That is an important part of the future of the
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`company. . . .” (emphasis added)).
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`Moreover, as noted, both HPI and HPE used the same WFR process and paperwork that
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`HP Co. used. See id. ¶¶ 11, 23–24, 35. HPI and HPE used uniform, near-verbatim paperwork
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`when terminating Plaintiffs and other putative collective members, who all received the same
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`worded reasons for being terminated, regardless of which entity they worked for. Id. ¶ 35. Those
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`notices at both HPI and HPE, state: “Employees were selected for the reduction in force because
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`the job they were performing will no longer continue, their skill set was not applicable to the
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`Company’s or organization’s operations going forward, and/or other employees were viewed as
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`better qualified because of past performance and competency evaluation, which may include
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`skills, abilities, knowledge and experience.” Id.
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`The two companies also worked together to coordinate efforts to implement the WFR,
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`which Plaintiffs allege resulted in continued discriminatory employment practices. Id. ¶¶ 24, 34–
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`38, 43–47, 55–56, 63–65. Plaintiffs further contend that the HP entities worked together to
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`impose a common ban on rehiring any employees discharged pursuant to the WFR, regardless of
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`what entity the employee was fired from. See id. ¶¶ 43–45 (describing the coordinated
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`“blacklisting policy”). HPI and HPE also implemented similar early retirement policies that were
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`meant to pressure older employees to leave “voluntarily” or risk being involuntarily fired under
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`the WFR. Id. ¶¶ 37–41. Plaintiffs allege that the coordinated efforts between HPI and HPE were
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`at Whitman’s direction as part of her ongoing initiative to make all the HP entities “younger.” Id.
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`¶¶ 4, 7. Both HPI and HPE followed the two-step Workforce Restructuring Initiative outlined
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`above. See id. ¶¶ 34–36. According to Plaintiffs, HPI and HPE even used the same terminology
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`as HP Co. to review employees—existing employees slated for termination under the WFR were
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`called “slates,” and the new hires that management hired to replace them were called “reqs.” Id. ¶
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`34.
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`Plaintiffs maintain that the slate and req process followed a “distinct pattern.” Id. ¶ 34. At
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`both HPI and HPE (and at HP Co. before the split), upper-level managers directed subordinate
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`managers to slate certain numbers of older long-term or long-tailed (“LT”) employees for
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`termination under the WFR. Id. Simultaneously, the upper-level managers authorized subordinate
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`managers to hire a similar number of early career employees to replace them. Id. During this
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`process, HP’s human resources department distributed written guidelines in August 2013 that
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`described a “requisition policy.” Id. ¶ 49. This policy mandated that at least 75% of people hired
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`to replace terminated LT employees be early career hires. Id. ¶¶ 49-51. Managers who resisted
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`directives to slate and replace LT employees were allegedly in danger of being terminated. For
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`instance, Plaintiff DeVere was instructed to identify two employees from his team to slate for
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`termination under the WFR. Id. ¶ 66. Plaintiff DeVere identified two employees for termination;
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`Northern District of California
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`he selected two younger early career hires who he believed were performing poorly. Id. Plaintiff
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`DeVere’s supervisor told him he should be slating LT employees rather than younger employees.
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`Id. Plaintiff DeVere resisted the direction to slate LT employees and ultimately designated the
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`two younger employees for termination. Id. This decision, however, was overruled by human
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`resources and two older members of Plaintiff DeVere’s team (over the age of 40) were fired under
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`the WFR. Id. ¶ 67. Soon thereafter, Plaintiff DeVere, who was also over the age of 40, was fired
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`under the WFR. Id. Plaintiffs argue that this, in combination with Whitman’s other statements,
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`show that older employees were terminated because of their age. Id. ¶¶ 34, 66–67.
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`Accordingly, Plaintiffs allege two nationwide ADEA collectives, one against each of the
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`two Defendants. Plaintiffs have defined the proposed collective against HPI as follows:
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`All individuals who had their employment terminated by HP, Inc.
`(including when HP, Inc. was named Hewlett-Packard Company)
`pursuant to a WFR Plan on or after December 9, 2014 for individuals
`terminated in deferral states; and on or after April 8, 2015 for
`individuals terminated in non-deferral states, and who were 40 years
`or older at the time of such termination.
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`Id. ¶ 105. The proposed collective against HPE is defined as follows:
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`All individuals who had their employment terminated by Hewlett
`Packard Enterprise Company pursuant to a WFR Plan on or after
`November 1, 2015, and who were 40 years or older at the time of such
`termination.
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`Id. ¶ 106. Plaintiffs’ collectives exclude individuals who signed a Waiver and General Release
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`Agreement or an Agreement to Arbitrate Claims. Id. ¶ 107.
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`II. LEGAL STANDARD
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`Plaintiffs seek collective certification of their ADEA case pursuant to the standards set
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`forth under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). The ADEA incorporates
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`the collective action procedures of the FLSA, set forth in 29 U.S.C. § 216(b). See 29 U.S.C. §
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`626(b); Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124, 1126 n.1 (N.D. Cal. 2009) (“[B]ecause
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`ADEA incorporates § 16(b) of the Fair Labor Standards Act into its enforcement scheme, the same
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`rules govern judicial management of collective actions under both statutes.”).
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`Case 5:16-cv-04775-EJD Document 423 Filed 04/13/21 Page 6 of 15
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`Conditional certification under § 216(b) differs markedly from class certification under
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`Federal Rule of Civil Procedure 23. Conditional certification in the FLSA context does not
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`“produce a class with an independent legal status, or join additional parties to the action.” Genesis
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`Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Instead, “[t]he sole consequence” of a
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`successful motion for conditional certification is “the sending of court-approved written notice” to
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`workers who may wish to join the litigation as individuals. Id.
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`The “near-universal practice” that Courts use to determine whether claims under the FLSA
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`should proceed in a collective is the two-step certification process. See Campbell v. City of Los
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`Angeles, 903 F.3d 1090, 1100 (9th Cir. 2018). The first step of this process occurs when a
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`plaintiff moves for conditional certification at some point during the pleading stage. Id. At this
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`first stage, “conditional certification is by no means automatic, but Plaintiffs’ burden is light.”
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`Dudley v. TrueCoverage LLC, No. CV 18-3760 PA (AGRX), 2018 WL 6431869, at *2 (C.D. Cal.
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`Sept. 28, 2018). “The district court’s analysis is typically focused on a review of the pleadings but
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`may sometimes be supplemented by declarations or limited other evidence.” Campbell, 903 F.3d
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`at 1109. The level of consideration is “lenient” and “loosely akin to a plausibility standard.” See
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`id.
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`The second step of the certification process is triggered when defendants move for
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`decertification following the conclusion of discovery. See id. at 1109. These motions usually
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`contend that plaintiffs have not developed a record sufficient to satisfy § 216(b)’s “similarly
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`situated” requirement. See id. This second step resembles a motion for summary judgment, and
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`“the plaintiff bears a heavier burden.” Id. (quoting Morgan v. Fam. Dollar Stores, Inc., 551 F.3d
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`1233, 1261 (11th Cir. 2008)).
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`The key inquiry during both steps of certification is whether the employees at issue are
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`“similarly situated.” See 29 U.S.C. § 216(b). The FLSA does not define “similarly situated,” but
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`the Ninth Circuit recently interpreted the term in Campbell. See Campbell, 903 F.3d at 1114.
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`There, the court ruled that employees are “similarly situated” for the purposes of the FLSA “to the
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`extent they share a similar issue of law or fact material to the disposition of their FLSA claims” or,
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`Case 5:16-cv-04775-EJD Document 423 Filed 04/13/21 Page 7 of 15
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`put another way, when they are “alike in ways that matter to the disposition of their FLSA
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`claims.” See id. “If the party plaintiffs’ factual or legal similarities are material to the resolution
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`of their case, dissimilarities in other respects should not defeat collective treatment.” See id.
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`District courts have found that the standard articulated in Campbell “requires a much lower
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`showing than the [ ] approach district courts previously employed.” Campanelli v. Image First
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`Healthcare Laundry Specialists, Inc., No. 15-CV-04456-PJH, 2018 WL 6727825, at *6 (N.D. Cal.
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`Dec. 21, 2018).
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`III.
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`JUDICIAL NOTICE
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`Defendants request for the Court to take judicial notice of fifteen different 10-K and 8K
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`filings with the Securities and Exchange Commission (“SEC”). See Defendants’ Request for
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`Judicial Notice, Dkt. No. 414-10. These documents were filed with the SEC during certain years
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`between 2005 and 2020. Federal Rule of Evidence 201(b) permits a court to take judicial notice of
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`an adjudicative fact “not subject to reasonable dispute,” that is “generally known” or “can be
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`accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
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`Specifically, a court may take judicial notice of matters of public record. Khoja v. Orexigen
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`Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).
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`In response, Plaintiffs argue that while the Court may take judicial notice of public
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`documents, the Court may not notice the factual content of the exhibits therein. This is true. “[A]
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`court may take ‘judicial notice of matters of public record,’ but ‘cannot take judicial notice of
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`disputed facts contained in such public records.’” Baird v. BlackRock Institutional Tr. Co., N.A.,
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`403 F. Supp. 3d 765, 774 (N.D. Cal. 2019) (quoting Khoja, 899 F.3d at 999). Where the SEC
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`filings are “subject to varying interpretations, and there is a reasonable dispute as to what the [SEC
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`filings] establish[],” the court should refuse to take judicial notice of the truth of any factual
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`assertions or statements contained therein. Baird, 403 F. Supp. 3d at 775 (quoting Khoja, 899
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`F.3d at 1000). Hence, with respect to Exhibits A-O, while the Court takes judicial notice of the
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`financial documents, it does not take judicial notice of any disputed facts therein.
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`Plaintiffs have also requested for the Court to take judicial notice of certain exhibits. See
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`Case 5:16-cv-04775-EJD Document 423 Filed 04/13/21 Page 8 of 15
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`Plaintiffs’ Request for Judicial Notice, Dkt. No. 416-2. In particular, Plaintiffs request this Court
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`take judicial notice of three public documents, including (1) a transcript of Hewlett-Packard
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`Securities Analyst Meeting held on October 9, 2013; (2) a transcript of Hewlett-Packard Securities
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`Analysis Meeting held on September 15, 2015; and (3) a “CNBC Transcript: Hewlett-Packard
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`Enterprise CEO & HP Inc. Chairman Meg Whitman Speaks with CNBC’s David Faber on
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`‘Squawk of the Street’ Today.” Courts may take notice of transcripts of conference earning calls.
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`In Re Energy Recover Inc. Sec. Litig., No. 15-CV-00265-EMC, 2016 WL 324150, at *3 (N.D. Cal.
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`Jan. 27, 2016) (“[T]ranscripts of conference earnings calls are judicially noticeable because they
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`are matters of public record. Courts can consider securities offerings and corporate disclosure
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`documents that are publicly available.”); Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540
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`F.3d 1049, 1064 n.7 (9th Cir. 2008) (same). Similarly, courts may take judicial notice of
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`transcripts of television news interviews and similar documents. Kuehbeck v. Genesis Microchip
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`Inc., No. C 02-05344 JSW, 2005 WL 1787426, at *4 (N.D. Cal. July 27, 2005) (granting request
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`for judicial notice of press releases, earnings call transcripts, and SEC filings referenced in the
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`complaint).
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`Therefore, the Court will take judicial notice of these three exhibits with respect to their
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`existence and what was in the public domain. However, the Court does not take judicial notice for
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`the truth of their contents. See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
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`954, 960 (9th Cir. 2009) (“Courts may take judicial notice of publications introduced to indicate
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`what was in the public realm at the time, not whether the contents of those articles were in fact
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`true”).
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`IV. DISCUSSION
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`A. Conditional Certification
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`The Court considers the pleadings and other evidence submitted to determine whether
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`potential collective action members are “similarly situated” to Plaintiffs. Per the Ninth Circuit’s
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`holding in Campbell, the Court specifically looks at whether the prospective collective members
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`are “alike with regard to some material aspect of their litigation.” 903 F.3d at 1114.
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`Based on the Campbell test, the Court concludes that the inquiry here is whether Plaintiffs
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`substantially allege that their employment was terminated pursuant to the ongoing, multiyear,
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`Workforce Restructuring Initiative, which was designed to replace existing, older workers with
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`new, younger employees. The Ninth Circuit’s analysis in Campbell supports this conclusion. In
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`Campbell, plaintiff police officers moved for conditional certification of a collective action
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`alleging “a pervasive, unwritten policy discouraging the reporting of overtime.” Id. at 1099. After
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`notice was sent to all potential collective action members and after years of discovery, the court
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`granted defendant’s motion for “decertification.” Id. The Ninth Circuit noted that the plaintiffs
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`would have been “similarly situated” if the record supported that “there was a tacit, Department-
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`wide policy discouraging the reporting of earned overtime.” Id. at 1116. The panel further stated
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`that this would have made the officers “alike in a way material to their litigation,” and that such a
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`likeness “would have affected the ultimate findings regarding the occurrence of unpaid overtime . .
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`., thus collectively advancing the litigation.” Id. In looking at this inquiry, the Court does not
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`address in any way whether the claims alleged by Plaintiffs have any merit.
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`Plaintiffs here allege that the declarations from named Plaintiffs submitted with the motion
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`demonstrate that Plaintiffs are “similarly situated” to other potential members of the proposed
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`collective action. Mot. at 16. Plaintiffs allege that they are similarly situated because they were
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`all employed by either HPI and HPE, were 40 years or older, received the same form documents
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`offering the same, generic, pretextual reasons for their termination, and were terminated under the
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`same company-wide, multiyear Workforce Restructuring Initiative. Id. at 14. Plaintiffs further
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`allege that they all declined to sign Defendants’ proposed release agreements, which were
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`identical for both HPI and HPE, and never signed any other “Agreement to Arbitrate Claims”
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`forms used by the Defendants. Id.
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`The Court first looks to the FAC. As recounted above, starting in 2012, Whitman
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`implemented the Workforce Restructuring Initiative. See supra; see also FAC ¶¶ 30–35.
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`Whitman was vocal about her desire to recruit and hire young people; Whitman wanted a “whole
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`host of young people.” See FAC ¶¶ 30–35. Moreover, Whitman’s statements were not contained
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`Case No.: 5:16-cv-04775-EJD
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`Case 5:16-cv-04775-EJD Document 423 Filed 04/13/21 Page 10 of 15
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`to just HP Co. To the contrary, according to Plaintiffs’ FAC, these statements directly translated
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`into discriminatory hiring and firing practices at both HPI and HPE. See supra Background
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`(noting that HPI and HPE used the same WFR process and worked together to implement the
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`WFR). Indeed, the FAC shows that both HPI and HPE used the Workforce Restructuring
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`Initiative to terminate older employees and hire younger ones. The Workforce Restructuring
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`Initiative and the related WFR were announced as means to reduce the HP workforce. FAC ¶ 12.
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`Yet, the Workforce Restructuring Initiative did not result in a decreased HP workforce. Rather,
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`Plaintiffs have alleged that “in the years since [Defendants] began to implement the Initiative and
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`the WFR plans . . . the [Defendants] have added thousands of new [and younger] employees to
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`replace those who were terminated under the WFR Plans.” Id. Moreover, Plaintiffs have plead
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`facts which show that Plaintiffs were competently performing their jobs. See supra Background.
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`However, Plaintiffs allege facts that show that managers were required to terminate older
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`employees because such employees were “old”. See FAC ¶¶ 65–67; see also 29 U.S.C. §
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`623(a)(1) (requiring the allegedly discriminatory action to be “because of” the plaintiff’s age).
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`They have also shown that older employees were terminated based on antiquated stereotypes. See
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`FAC ¶ 59 (stating that Defendants considered older employees to move “slow and steady” and
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`“undesirable”). Thus, Plaintiffs allege they were all subject to the same illegal selection of older
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`workers for termination under the WFRs and pursuant to the Workforce Restructuring Initiative.
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`Four of the named Plaintiffs also submitted declarations with the motion. Although the
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`declarations are similar, the representative sample documents attached to the declarations show
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`that Plaintiffs received a substantially similar set of documents when they were terminated under
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`the Restructuring Initiative in different years. See Plaintiffs’ Declarations, Dkt. Nos. 409-1 to 5,
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`Exs. A-D. Among the documents employees received when they were terminated as part of the
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`Workforce Restructuring Initiative were (1) a form letter notifying the employee of termination,
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`(2) a summary plan description of benefits, (3) a frequently asked questions document, and (4) a
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`notice under the Older Workers Benefit Protection Act (“OWBPA”). Mot. at 4-10; Plaintiffs’
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`Declarations, Dkt. Nos. 409-1 to 5, Exs. A-D. The “Notification and Severance Materials” forms
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`Northern District of California
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`United States District Court
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`Case 5:16-cv-04775-EJD Document 423 Filed 04/13/21 Page 11 of 15
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`received by Plaintiffs all referred to the “U.S. Workforce Reduction Program” and an associated
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`website. See Declaration of Dan Weiland (“Weiland Decl.”) ¶ 3, Ex. A at 1; Declaration of Arun
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`Vatturi (“Vatturi Decl.”) ¶ 3, Ex. A at 1; see also Declaration of Donna Forsyth (“Forsyth Decl.”)
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`¶ 3, Ex. A at 1; Declaration of Kevin Alviso (“Alviso Decl.”) ¶ 3, Ex. A at 1.
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`Plaintiffs’ declarations also describe how the respective “Workforce Reduction Plan
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`Summary Plan Descriptions” all have language describing a single plan and confirm they were
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`used as part of the same Workforce Restructuring Initiative involving the same group of
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`terminated employees identified in Plaintiffs’ proposed collective actions. See Weiland Decl. ¶ 4,
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`Ex. B at 1-3; Vatturi Decl. ¶4, Ex. B at 1-3; see also Forsyth Decl. ¶ 4, Ex. B at 1. Further, the
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`nearly identical “Workforce Reduction (WFR) Frequently Asked Questions (FAQs)” documents
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`presented in Plaintiffs’ separate declarations all explain that the employment terminations
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`occurred for the same reasons and were implemented by both HPI and HPE using the same WFR
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`processes. See Weiland Decl. ¶ 5, Ex. C at 2; Vatturi Decl. ¶ 5, Ex. C at 2; see also Forsyth Decl.
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`¶ 5, Ex. C at 2. The Court finds that these declarations, combined with the detailed factual
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`allegations in the complaint, are sufficient to show that the proposed collectives are “alike in ways
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`that matter to the disposition of their [ADEA] claims.” Campbell, 903 F.3d at 1117; see also
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`Knight v. Concentrix Corp., No. 4:18-CV-07101-KAW, 2019 WL 3503052, at *3 (N.D. Cal. Aug.
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`1, 2019) (finding that three declarations were sufficient at the conditional certification stage).
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`Indeed, the implementation of the Workforce Restructuring Initiative across both HPI and HPE is
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`a “shared issue of fact” that is “material” to the claims. See Campbell, 903 F.3d at 1114 (finding
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`that if supported by an adequate record, plaintiffs’ allegations that the police department had a
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`tacit policy of discouraging overtime would have been sufficient to show that they were similarly
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`situated).
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`Defendants’ attempt to rebut Plaintiffs’ showing with competing declarations is unavailing
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`at this preliminary certification stage. Defendants argue that Plaintiffs theory in support of their
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`age discrimination claims ignores the financial and business circumstances that HP Co. and
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`Whitman were facing. See Opp. at 4-5. According to Defendants, employee WFRs were only one
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`Case No.: 5:16-cv-04775-EJD
`ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY CERTIFICATION
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`Northern District of California
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`Case 5:16-cv-04775-EJD Document 423 Filed 04/13/21 Page 12 of 15
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`cost-cutting measure that HP. Co. took to restructure its businesses, reduce long-term debt, and
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`better align its costs structure with incoming revenues. Id. at 5. Defendants support this
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`contention with declarations from different employees and supervisors and Defendants’ financial
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`documents to argue that Plaintiffs are not similarly situated and were ultimately terminated for
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`independent reasons that did not have to do with their age. Plaintiffs argue that these declarations
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`go to the merits of their claims and should not be considered until the decertification stage. The
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`Court agrees.
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`As discussed above, during this first stage of conditional certification, the scope of review
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`is loosely akin to a plausibility standard. See Campbell, 903 F.3d at 1109. The question at this
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`point “is not whose evidence regarding commonality is more believable, but simply whether
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`plaintiffs have made an adequate threshold showing.” Flores v. Velocity Exp., Inc., No. 12CV-
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`05790-JST, 2013 WL 2468362, at *7 (N.D. Cal. June 7, 2013). Courts rarely reject conditional
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`certification during this first stage based on a defendant’s declarations. See, e.g., Dashiell v. Cty.
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`of Riverside, No. EDCV15211JGBSPX, 2015 WL 13764448, at *5 (C.D. Cal. Sept. 18, 2015)
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`(finding that declarations submitted by employees “averring that they were not subject to the
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`violations alleged in Plaintiff’s complaint do not preclude conditional certification”); Ellerd v. Cty.
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`of Los Angeles, No. CV 08-4289 CAS FFMX, 2009 WL 3462179, at *4 (C.D. Cal. Oct. 22, 2009)
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`(granting conditional certification even though “defendant has made its own substantial allegations
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`(supported by affidavits and depositions) which contradict many of the facts that the plaintiffs
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`seek to prove”). Accordingly, the Court finds that Plaintiffs have met their burden i