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`IN THE UNITED STATES DISTRICT COURT
` FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`________________________________
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`PATRICE KANTZ
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` on behalf of herself individually
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` and on behalf of those similarly
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`Plaintiff,
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`v.
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`AT&T, INC.
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`and
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`AT&T SERVICES, INC.,
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`Defendants.
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`________________________________
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`CIVIL ACTION NO. 2:20-cv-00531
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`Judge Petrese B. Tucker
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`JURY TRIAL DEMANDED
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`PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’
`PARTIAL MOTION TO DISMISS
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`Dated: May 5, 2022
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`Respectfully submitted by,
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`CONSOLE MATTIACCI LAW, LLC
`Susan M. Saint-Antoine
`Daniel S. Orlow
`Stephen G. Console
`Laura C. Mattiacci
`1525 Locust Street, 9th Floor
`Philadelphia, PA 19102
`santanto@consolelaw.com
`orlow@consolelaw.com
`console@consolelaw.com
`mattiacci@consolelaw.com
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`Attorneys for Plaintiff,
`Patrice Kantz
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 2 of 30
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`TABLE OF CONTENTS
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`
`TABLE OF AUTHORITIES .................................................................................................................................... iii-iv
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`I.
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`II.
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`BRIEF BACKGROUND .............................................................................................................................. 1
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`STANDARD OF REVIEW .................................................................................................2
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`SUMMARY OF MATERIAL FACTS .....................................................................................3
`
`
`A. AT&T’s intent to transform its workforce into a younger one by 2020 through its three-step
`surplus-termination-release program ..............................................................................3
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`B. On January 11, 2019, the E.D. Pa. entered summary judgment against AT&T for violating the
`ADEA through is use of its “General Release.” ..............................................................4
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`C. General Release’s waiver of claims and collective action waiver under the ADEA are crucial
`to AT&T’s systemic age discrimination .........................................................................5
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`D. On January 28, 2019, AT&T notified Plaintiff and other older employees that they were
`selected for surplus/reduction in force and presented them with the same General Release and
`disclosures that the court in Ray already ruled violated the ADEA .....................................6
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`E. AT&T knowingly and falsely told Plaintiff and other older employees that they were releasing
`their ADEA claims ......................................................................................................7
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`F. AT&T obtained through the General Release a Class, Collective and Representative Action
`Waiver while falsely telling Plaintiff and other older employees that they had released all
`ADEA claims against AT&T anyway..........................................................................10
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`G. AT&T never informed its terminated older employees that the General Release was invalid as
`to ADEA claims ........................................................................................................11
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`ARGUMENT: AT&T’S MOTION SHOULD BE DENIED ....................................................12
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`A. AT&T’s judicial estoppel argument is off the mark because Plaintiff has not
`reversed her position ..............................................................................................12
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`B. It would be premature to dismiss at this stage Plaintiff’s collective action
`allegations based on AT&T’s assertion of an affirmative defense ........................15
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`C. Under Pennsylvania law, AT&T’s attempt to enforce the ADEA collective action
`waiver is a request for specific performance, which sounds in equity and is barred
`by the doctrine of unclean hands ...........................................................................18
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`i
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`III.
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`IV.
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 3 of 30
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`1.
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`AT&T’s arguments as to the insufficiency of the Amended Complaint’s
`allegations are unavailing ............................................................................................ 20
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`D. The “Class, Collective and Representative Action Waiver” as applied to Plaintiff’s ADEA
`claims is unconscionable under Pennsylvania law and should not be enforced ...................23
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`CONCLUSION ..................................................................................................................25
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`V.
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`ii
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 4 of 30
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`TABLE OF AUTHORITIES
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`CASES
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`Bell Atl. Corp. v. Twombly,
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` 550 U.S. 544, 555 (2007) ......................................................................................................... 3
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`Branson v. IKEA Holdings US,
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`2021 U.S. Dist. LEXIS 180616 (E.D. Pa. Sep. 22, 2021) .................................................. 3, 21
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`Burtch v. Milberg Factors, Inc.,
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`662 F.3d 212 (3d Cir. 2011) ................................................................................................... 21
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`Cephalon, Inc. v. Slayback Pharma Ltd. Liab. Co.,
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`2019 U.S. Dist. LEXIS 129020 (D. Del. Aug. 1, 2019) ......................................................... 23
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`Donofrio v. IKEA US Retail, LLC,
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`2019 U.S. Dist. LEXIS 230218 (E.D. Pa. May 15, 2019) ...................................................... 15
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`Duffy v. Sodexho, Inc.,
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`2008 U.S. Dist. LEXIS 93378 (E.D. Pa. Nov. 17, 2008) ....................................................... 21
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`Halle v. W. Penn Allegheny Health Sys. Inc.,
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`842 F.3d 215 (3d Cir. 2016) ................................................................................................... 15
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`Hodczak v. Latrobe Specialty Steel Co.,
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`2009 U.S. Dist. LEXIS 127888 (W.D. Pa. Mar. 9, 2009) ...................................................... 16
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`Hoffmann-La Roche v. Sperling,
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`493 U.S. 165 (1989) ......................................................................................................... 20, 25
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`Horowitz v. AT&T, Inc.,
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`2018 U.S. Dist. LEXIS 69191 (D.N.J. April 25, 2018) ......................................................... 25
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`In re Spectrum All., LP, Bankr.
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`2022 Bankr. LEXIS 175 (Bankr. E.D. Pa. Jan. 24, 2022) ...................................................... 13
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`International Brotherhood of Teamsters v. United States,
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`431 U.S. 324 (1977) ............................................................................................................... 20
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`Kubischta v. Schlumberger Tech. Corp.,
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`2016 U.S. Dist. LEXIS 91556 (W.D. Pa. July 14, 2106) ....................................................... 25
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`Mente v. Chev. Olds.,
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`451 F. Appx 214 (3d Cir. 2011) ...................................................................................... 18, 19
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`
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`iii
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 5 of 30
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`Quillon v. Tenet HealthSystem Philadelphia, Inc.,
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`673 F.3d 221 (3d Cir. 2012) ................................................................................................... 24
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`Romero v. Allstate Ins. Co.,
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`52 F. Supp. 3d 715 (E.D. Pa. 2014) ........................................................................................ 19
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`Sonos, Inc. v. D&M Holdings Inc.,
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`2016 U.S. Dist. LEXIS 105271 (D. Del. Aug. 10, 2016) ....................................................... 23
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`STATUTES
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`29 U.S.C. § 216 ........................................................................................................................ 1
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`29 U.S.C. § 621 ........................................................................................................................ 1
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`29 U.S.C. § 623 ........................................................................................................................ 1
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`29 U.S.C. § 626 .................................................................................................................... 1, 5
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`RULES
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`Fed.R.Civ.P. 8 ................................................................................................................... 12, 16
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`Fed.R.Civ.P. 12 ............................................................................................................. 3, 16, 22
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`iv
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 6 of 30
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`Plaintiff, Patrice Kantz, hereby opposes the Partial Motion to Dismiss filed by
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`defendants, AT&T, Inc. and AT&T Services, Inc. (together, “AT&T”).
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`I.
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`BRIEF BACKGROUND.
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`The Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), among
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`other things: a) prohibits discrimination because of age and authorizes an employee to bring a
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`claim against an employer for doing so (29 U.S.C. § 623), b) incorporates section 16(b) of the
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`Fair Labor Standards Act, 29 U.S.C. § 216(b), and thereby confers upon an aggrieved employee
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`the right to bring the claim as a collective action (29 U.S.C. § 626(b)); and c) states strict
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`requirements an employer must meet in order to obtain an enforceable waiver of “any right or
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`claim” (29 U.S.C. § 626(f)).
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`On January 30, 2020, Ms. Kantz filed a complaint against AT&T, on behalf of herself
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`individually and on behalf of those similarly situated pursuant to the ADEA, for age
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`discrimination in violation of the ADEA. ECF 1.
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`In her initial Complaint, Ms. Kantz alleged, among other things, that AT&T had engaged
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`in systemic age discrimination whereby AT&T had a long term plan to eliminate older
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`employees from its workforce and replace them with younger ones (ECF 1, ¶27-32), and that in
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`connection with its plan, AT&T intentionally obtained from its terminated older employees a
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`purported “General Release” that it knew was in violation of the ADEA, while simultaneously
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`obtaining a waiver of their statutory right to proceed collectively on an ADEA claim by
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`intentionally and falsely telling them, in effect, that they would be waiving the right to proceed
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`collectively on a claim that they had released anyway. ECF 1, ¶91. Ms. Kantz’ initial Complaint
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`asserted claims for age discrimination under the ADEA only, and it was brought as a putative
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`collective action under the ADEA’s specific statutory mechanism for a group action.
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`1
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 7 of 30
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`AT&T on May 4, 2020 filed a motion to compel Kantz to individual arbitration pursuant
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`to its Management Arbitration Agreement (“MAA”). ECF 7. Ms. Kantz opposed AT&T’s
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`Motion on several grounds, including that the MAA, if enforceable, was superseded by the
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`General Release. ECF 13, p. 41-42. Ms. Kantz argued that the General Release was an
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`enforceable contract except as to rights and claims under the ADEA. ECF 15. The Honorable
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`Curtis Joyner permitted the parties a brief discovery period on the enforceability of the MAA
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`and, on March 19, 2021, denied AT&T’s renewed motion to compel individual arbitration. ECF
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`37. Judge Joyner held that the MAA was superseded by the General Release; the Court did not
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`address the issue of whether the General Release was enforceable as to ADEA rights or claims.
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`Id. The Third Circuit affirmed this Court’s decision. Third Circuit Docket No. 32-1.
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`Rather than answer Plaintiff’s Complaint, AT&T on March 9, 2022, filed a motion to
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`dismiss the collective action allegations of Plaintiff’s Complaint. ECF 47. In response, Plaintiff
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`timely filed an Amended Complaint. ECF 49. On April 21, 2022, AT&T filed pursuant to
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`Fed.R.Civ.P. 12(b)(6) a Partial Motion to Dismiss the collective action allegations of Plaintiff’s
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`Amended Complaint. ECF 51.
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`AT&T does not move to dismiss any of the Counts asserted in Ms. Kantz’ Amended
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`Complaint, and does not challenge on any basis her claims against AT&T for violation of the
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`ADEA that she has brought on behalf of herself individually. Id. Rather, AT&T asserts the
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`affirmative defense that the “Class, Collective and Representative Action Waiver” contained in
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`the General Release bars Plaintiff from pursuing a collective action under the ADEA. Id. at 1.
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`II.
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`STANDARD OF REVIEW.
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`“In deciding a motion to dismiss under Rule 12(b)(6), a court must accept all factual
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`allegations as true, construe the complaint in the light most favorable to the plaintiff, and
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`determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
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`2
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 8 of 30
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`to relief.’” Branson v. IKEA Holdings US, 2021 U.S. Dist. LEXIS 180616, *7 (E.D. Pa. Sep. 22,
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`2021)(quoting Phillips v. City of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). “To survive
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`dismissal, a complaint must allege facts sufficient to ‘raise a right to relief above the speculative
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`level.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “’Threadbare
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`recitals of the elements of a cause of action, supported by mere conclusory statements, do not
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`suffice.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The issue for the Court is “not
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`whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
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`support the claims.” Twombly, 550 U.S. at 563 n. 8 (quoting Scheuer v. Rhodes, 416 U.S. 232,
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`236 (1974)).
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`III.
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`SUMMARY OF MATERIAL FACTS.
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`Plaintiff’s Amended Complaint sets forth in detail the particular facts that state a
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`plausible basis for finding that the General Release’s “Class, Collective and Representative
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`Action Waiver” is unenforceable as to Plaintiff’s ADEA claims. The material facts are
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`summarized briefly below. (For purposes of brevity, many of the allegations are stated in
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`conclusory form with references to the paragraphs in the Amended Complaint, which state
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`specific supporting factual details.)
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`A.
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`AT&T’s intent to transform its workforce into a younger one by 2020
`through its three-step surplus-termination-release program.
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`AT&T has a corporate culture of age bias. ECF 49, ¶27(a)-(n). AT&T desired a
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`transformation of its workforce into a younger one by the year 2020. Id., ¶28. AT&T has
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`engaged in a pattern or practice of age discrimination to achieve its desired transformation of its
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`workforce into a younger one by the year 2020. Id., ¶29(a)-(o).
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`AT&T knowingly used a layoff process (which it calls a “surplus”) intended to conceal
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`age discriminatory intent and impact. Id., ¶34(a)-(d). In the first step, AT&T notifies employees
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`3
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 9 of 30
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`of their selection for surplus and termination of employment effective at a later date. Id., ¶33.
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`The second step involves a period during which “surplussed” employees may attempt to secure
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`an alternative position at AT&T and thereby avoid termination. Id. In the third step, AT&T
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`offers terminated employees severance in exchange for what purports to be a “General Release”
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`of all claims including through termination, and which includes a “Class, Collective and
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`Representative Action Waiver.” Id.
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` AT&T has for several years conducted these vast involuntary group terminations with
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`the intent of transforming its older workforce into a younger one by the year 2020. Id., ¶30. A
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`jury found that age was a determinative factor in AT&T’s decision to select former AT&T
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`employee Alison Ray during its reduction in force/surplus and terminate her employment in
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`January, 2018, and that AT&T either knew or showed reckless disregard for whether its
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`selection of Ms. Ray was prohibited by law. Id., ¶29(o).
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`B.
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`On January 11, 2019, the E.D. Pa. entered summary judgment against
`AT&T for violating the ADEA through its use of it its “General Release.”
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`Prior to the jury’s verdict, the court in the Ray case found on January 11, 2019, that
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`AT&T’s standard form “General Release and Waiver” that it had obtained from the plaintiff was
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`not an enforceable waiver under the ADEA because AT&T failed to disclose information (in
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`particular, the “Decisional Unit”) required by the OWBPA. (Ray v. Mobility Services, LLC,
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`2:18-cv-03303 – TR (E.D. Pa. 11, 2019, ECF No. 28, found in the record of this case at ECF 34-
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`3)). In its Memorandum Opinion, Judge Rice addressed the purpose of the ADEA’s disclosure
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`requirements: “Congress intended the OWBPA’s disclosure requirements to arm employees
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`with enough information to make an informed decision whether to release any potential ADEA
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`claims against an employer.” ECF 34-3 at p. 27 of 148.
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`4
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 10 of 30
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`The Court in Ray specifically noted the possibility that “that an employer will want to
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`fiddle with the definition [of the decisional unit] to mask the possible evidence of age
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`discrimination.’” (Id. at p. 26 of 148, citation omitted, emphasis added). The Court explained
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`that AT&T had defined the “Decisional Unit” as being comprised of “Affected Work Groups”
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`(“AWGs”) and that “[b]ecause AT&T’s combined work groups were assembled solely to
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`effectuate the reduction, terminated employees such as Ray had no meaningful understanding of
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`the composition or origin. Although AT&T attempted to define the Affected Work Groups, it
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`used – perhaps purposefully – vague language such as “positions … with similar definable
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`characteristics” and “any portion of an organization,” without identifying those characteristics or
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`what portions of the organization they encompassed. This definition was not understandable to
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`the average worker and did not reflect the process utilized in selecting employees for the
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`reduction.” Id. at p. 27 of 148. The Court concluded that “… this is not a case where holding
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`AT&T accountable ‘would elevate form over substance’ for an otherwise de minimis technical
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`violation.” Id. at p. 28 of 148.
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`C.
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`The General Release’s waiver of claims and collective action waiver under
`the ADEA are crucial to AT&T’s systemic age discrimination.
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`Crucial to the viability of AT&T’s determination to intentionally terminate a large
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`number of older employees was curtailing age discrimination lawsuits for doing so. ECF 49,
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`¶31. AT&T was aware that in order to effectively waive an ADEA claim, a release must be
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`“knowing and voluntary,” meaning that it must satisfy the OWBPA’s requirements as stated in
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`29 U.S.C. § 626(f)(1). Id., ¶31(c). AT&T determined that in order to effectuate its goal of
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`transforming its workforce into a younger one by the year 2020 without facing an onslaught of
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`age discrimination suits, AT&T needed to obtain from terminated older employees the benefit of
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`an ADEA waiver (i.e., foregoing suit) while concealing from them the data that would reveal age
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`5
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 11 of 30
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`discriminatory impact or suggest age discriminatory intent that the OWBPA requires. Id., ¶32.
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`AT&T was also aware that proving disparate impact age discrimination requires expert statistical
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`analysis, and that doing so is generally cost prohibitive to an individual plaintiff. Id., ¶36(d).
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`AT&T was aware that an ADEA collective action is a vehicle that, without limitation would
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`permit older terminated employees to share their evidence and pool their resources, and permit
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`older terminated employees to address AT&T’s systemic age discrimination by pursuing claims
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`of age discrimination using a pattern or practice method of proof/evidentiary framework. Id.,
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`¶36(a)(i)-(iv).
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`D.
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`On January 28, 2019, AT&T notified Plaintiff and other older employees
`that they were selected for surplus/reduction in force and presented them
`with the same General Release and disclosures that the court in Ray already
`ruled violated the ADEA.
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`On January 28, 2019, AT&T notified Plaintiff that she had been selected for “surplus” in
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`connection with a surplus/reduction in force in its Technology and Operations divisions
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`(“ATO”). Id., ¶80. Not everyone in ATO was subject to possible surplus selection. Id., ¶54, 68.
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`AT&T formulated and populated AWGs for purposes of considering ATO employees for surplus
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`selection. Id., ¶65. However, not all employees within ATO were assigned to an AWG. Id.,
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`¶54, 68. AT&T’s determination of the scope and population of each “AWG” was intended to
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`discriminate against older employees. Id., ¶66, 69, 71.
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`Plaintiff was a highly qualified and dedicated employee of AT&T for more than thirty-
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`seven years when AT&T selected her for surplus and terminated her employment because of her
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`age, 57. Id., ¶3, 140 Plaintiff held the position of Senior Technical Project/Program Manager in
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`ATO. Id., ¶141. She was well qualified for the position. Id., ¶142. AT&T did not select for
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`surplus and retained several substantially younger, less qualified employees in the Senior
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`Technical Project/Program Manager position. Id., ¶182-187. Following her surplus selection,
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`6
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 12 of 30
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`Plaintiff applied for at least twelve open and available positions for which she was qualified. Id.,
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`¶170. AT&T did not even interview her for a single one. Id., ¶175. AT&T did not offer
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`Plaintiff a position and her employment was terminated effective March 29, 2019. Id., ¶176.
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`AT&T terminated Plaintiff’s employment because of her age. Id., ¶190.
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`Each ATO surplussed employee, including Plaintiff, received a standard surplus packet
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`of materials that was materially identical to those at issue in the Ray case. ECF 49, ¶82. Each
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`surplussed employee received the same standard form Surplus Notification letter, stating the
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`exact same reason for his or her surplus selection as in the Ray case. ECF 49, ¶ 83; see also ECF
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`34-4, p. 36 of 148.
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`E.
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`AT&T knowingly and falsely told Plaintiff and other older employees that
`they were releasing their ADEA claims.
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`AT&T presented to Plaintiff the standard form General Release and Waiver, which was
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`accompanied by a standard form AT&T ADEA Information Notice and ADEA Listing. Id.,
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`¶193. AT&T presented to Plaintiff the same General Release and Waiver with accompanying
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`disclosures that were materially identical to those previously determined in the Ray case to be in
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`violation of the ADEA. ECF 49, ¶194.
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`The Surplus Notification letter stated that it was providing the employee with
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`“Information required by the Age Discrimination in Employment Act (ADEA)”. ECF 49, ¶87.
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`This statement was false. AT&T knew that the information it was providing failed to provide the
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`information required by the ADEA for an enforceable waiver. Id., ¶88. On the contrary, AT&T
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`provided the exact same definitions of Decisional Unit and Affected Work Group that the Court
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`in Ray found insufficient to satisfy the OWBPA’s requirements. ECF 49, ¶88; see also
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`comparison of ECF 34-3, p. 54 of 148 (Ray decisional unit definition) with ECF 34-3, p. 89 of
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`148 (Kantz decisional unit definition).
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`7
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`Case 2:20-cv-00531-PBT Document 52 Filed 05/05/22 Page 13 of 30
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`Further, along with the “General Release,” AT&T affirmatively and falsely represented
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`to Plaintiff and the other terminated older employees that, at the time of their selections for
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`surplus, it had provided the ages and job titles of those “designated to participate in the [AT&T,
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`Inc. Severance Pay Plan].” ECF 49, ¶91. AT&T was a fiduciary of the Severance Pay Plan. Id.,
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`¶93. It knew its representation to be false. Id., ¶92. The AT&T, Inc. Severance Pay Plan
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`required, as a condition of eligibility, that its participants had to have actually been terminated
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`from employment. Id., ¶92. In fact, some employees who had been placed on surplus status
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`along with Plaintiff and the putative class members were able to find other positions at AT&T
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`within the sixty (60) day period. Id., ¶98. AT&T purposefully concealed from the terminated
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`older employees the demographic data as to actual terminations resulting from the workforce
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`reduction because, upon information and belief, the termination data would reveal age
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`discrimination. Id., ¶100.
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`As part of the workforce reduction process, AWGs within plaintiff’s “organization”
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`(Technical Field Services) were identified for possible surplus/reduction in force. Id., ¶199. Not
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`every employee in Technical Field Services was assigned to an AWG. Id., ¶200. The job titles
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`and ages of employees in Technical Fields Services who were not assigned to Affected Work
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`Groups were not disclosed in the ADEA Listing provided to Plaintiff. Id., ¶201. At the same
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`time that AT&T provided the ADEA Listing to Plaintiff, AT&T provided to other surplussed
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`employees in the same organization (Technical Field Services) a different ADEA Listing. Id.,
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`¶207. This different ADEA Listing had ages for job titles that appeared similar to those in the
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`ADEA Listing provided to Plaintiff. Id., ¶208-209. At least one job title (Area Manager
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`Network Engineering*) in the “Technical Field Services” organization appeared on both ADEA
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`Listings, but had different “AWGs” and age information. Id. AT&T provided no explanation to
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`Plaintiff as to why surplussed employees in the same organization (“Technical Field Services
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`Juan Flores – SVP – Technical Field Services) were assigned to different AWGs and on what
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`basis, and why AT&T provided job titles/ages/surplus selection status for only some employees
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`in the organization and on what basis it was determined as to which information to provide. Id.,
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`¶210.
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`AT&T submitted a position statement to the EEOC which made representations as to the
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`job titles and ages of those selected for surplus that were contrary to what AT&T told Plaintiff in
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`its disclosures. Id., ¶212. AT&T told the EEOC that Plaintiff was assigned to AWG 1, but had
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`given disclosures indicating that she had been assigned to AWG 13. Id., ¶213-214. AT&T’s
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`Position Statement contained contrary information as to the number of positions eliminated,
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`number of AWGs, the AWG to which Plaintiff was assigned, the number of other employees in
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`her AWG, and how many of those were selected for surplus. Id., ¶213-216.
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`The ADEA Listing provided to Plaintiff does not provide information regarding whether
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`the employment of those individuals selected for surplus was later terminated. Id., ¶211.
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`AT&T did not provide disclosures to Plaintiff and other older workers that complied with
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`the OWBPA. Id., ¶101(a)-(j). The General Release was not an enforceable waiver of Plaintiff’s
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`right to sue the company for age discrimination in violation of the ADEA. Id., ¶ 29(m), 101,
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`104. AT&T knew that its disclosures to Plaintiff and other older workers did not comply with
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`the OWBPA (indeed, they were the same as the ones the Ray court had determined were
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`insufficient). Id., ¶88-89. AT&T knew that the General Release was not an enforceable waiver
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`of Plaintiff’s right to sue the company for age discrimination in violation of the ADE (indeed, it
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`was the same as the one that the Ray court had determined violated the ADEA). Id.
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`F.
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`AT&T obtained through the General Release a Class, Collective and
`Representative Action Waiver while falsely telling Plaintiff and other older
`employees that they had released all ADEA claims against AT&T anyway.
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`AT&T obtained through its General Release a “Class, Collective, and Representative
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`Action Waiver” including a purported waiver of an older employee’s statutory right to proceed
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`collectively against AT&T on an ADEA claim. Id., ¶108. The ADEA collective action waiver
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`was presented simultaneously with AT&T’s intentionally false representation that the employee
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`had released any claim under the ADEA and could not sue AT&T anyway under the ADEA. Id.,
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`¶138(a). AT&T obtained the ADEA collective action waiver through false pretenses by
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`simultaneously presenting it in a General Release and Waiver which falsely tells the employee
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`that he or she cannot sue AT&T under the ADEA anyway. Id.
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`The ADEA collective action waiver was drafted by AT&T. Id. The ADEA collective
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`action waiver was not subject to negotiation. Id. There was a great imbalance of power between
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`AT&T and Plaintiff. Id. Plaintiff was especially vulnerable having just been terminated from
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`employment. Id. AT&T was a fiduciary of the AT&T Severance Plan. Id. AT&T falsely told
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`Plaintiff and the other older employees that in order to get and keep severance they had released
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`their ADEA claims and could not sue the company for age discrimination. Id. The ADEA
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`collective action waiver was obtained through false pretenses by AT&T. Id. The ADEA
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`collective action waiver was obtained by AT&T in breach of its fiduciary duties. Id. The
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`purported waiver of an older employee’s right to bring and/or participate in an ADEA collective
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`action was not entered into knowingly or voluntarily by Plaintiff or the other older terminated
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`employees. Id., ¶110.
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`The ADEA collective action waiver, if enforced, would prejudice Plaintiff’s ability to
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`pursue an age discrimination claim. Id., ¶219(a)-(e). Among other things:
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`•
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`•
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`It would preclude Plaintiff from pooling resources with other older terminated
`ATO employees to litigate her age discrimination claim. Id., ¶219(b).
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`It would effectively preclude Plaintiff from learning information from other older
`ATO terminated employees probative of AT&T’s age discrimination. Id.,
`¶219(c).
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`• The extraordinarily high cost of a qualified expert to do an analysis and report
`sufficiently reliable to show disparate impact or probative evidence of disparate
`treatment cannot as a practical matter be borne by Plaintiff proceeding on an
`individual basis. Id., ¶219(d).
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`• The ADEA collective action waiver, if enforced, would limit Plaintiff’s rights by
`precluding her pursuit of a pattern or practice claim of age discrimination. Id.,
`¶219(e).
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`AT&T never informed its terminated older employees that the General
`Release was invalid as to ADEA claims.
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`
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`G.
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`
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`Following their notification of surplus, Plaintiff and other surplus employees had 60 days
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`to try to find another job before they would be terminated. Id., ¶33, 98, 156, 176. Plaintiff
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`remained an employee of AT&T until the effective date of her termination, i.e., until March 29,
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`2019. Id., ¶170-176. During this time, AT&T never informed Plaintiff and the other older
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`employees that the same standard form General Release that they were being told was required
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`to be signed for severance had been determined by a federal district court to violate the ADEA
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`and was unenforceable as to ADEA claims.
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`The ADEA collective action waiver, if enforced, would preclude other terminated older
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`employees from ever receiving Court authorized notice informing them that, contrary to what
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`AT&T told them, the release that they signed did not validly waive their claims under the
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`ADEA, and that the employee could in fact keep their severance payment and sue AT&T under
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`the ADEA for age discrimination in connection with their surplus and termination. Id., ¶36(c).
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`The ADEA collective action waiver, if enforced, would preclude other terminated older
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`employees who were lulled by AT&T into forgoing the pursuit of an ADEA claim from
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`recovering for AT&T’s discrimination. Id., ¶118, 126.
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`IV. ARGUMENT: AT&T’S MOTION SHOULD BE DENIED.
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`AT&T’s Partial Motion to Dismiss relies on the assertion of a