Rabin et al v. PricewaterhouseCoopers LLP, No. 3:2016cv02276 - Document 236 (N.D. Cal. 2018)

Court Description: ORDER DENYING COLLECTIVE CERTIFICATION by Judge Jon S. Tigar denying 198 Motion to Certify Class. (wsn, COURT STAFF) (Filed on 7/26/2018)
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Rabin et al v. PricewaterhouseCoopers LLP Doc. 236 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 STEVE RABIN, et al., 7 Plaintiffs, 8 ORDER DENYING COLLECTIVE CERTIFICATION v. 9 PRICEWATERHOUSECOOPERS LLP, 10 Re: ECF No. 198 Defendant. 11 United States District Court Northern District of California Case No. 16-cv-02276-JST 12 13 Before the Court is Plaintiffs Steve Rabin and John Chapman’s motion for conditional 14 certification of their proposed collective action. ECF No. 198. They seek to certify a class of 15 older applicants for employment at Defendant PricewaterhouseCoopers, LLC (“PwC”), alleging 16 that such applicants were subject to age discrimination. As set forth below, the Court concludes 17 that Rabin and Chapman are not substantially similar either to unqualified applicants or to deterred 18 applicants, both of which categories are part of the larger collective action they seek to certify. 19 Accordingly, the Court denies the motion.1 20 I. BACKGROUND Plaintiffs filed this putative collective action on April 27, 2016. ECF No. 1. They allege 21 22 that PwC “engag[es] in an intentional, companywide, and systemic policy, pattern, and/or practice 23 of discrimination against [older] applicants” and “maintain[s] discriminatory policies, patterns, 24 and/or practices that have an adverse impact on [older] applicants and prospective applicants.” 25 26 27 28 1 The Court has filed this order under seal because it contains material subject to sealing orders. Within seven days of the filing date of this order, the parties’ shall provide the Court a stipulated redacted version of this order, redacting only those portions of the order containing or referring to material for which the Court has granted a motion to seal and for which the parties’ still request the material be sealed. The Court will then issue a redacted version of the order. Dockets.Justia.com 1 ECF No. 42 ¶ 115. Plaintiffs claim that PwC “maintains hiring policies and practices for giving 2 preference to younger employees that result in the disproportionate employment of younger 3 applicants.” Id. ¶ 6. According to the complaint, these practices also deter older applicants from 4 applying for positions at PwC in the first place. Id. ¶ 11. Defendant PwC is a global accounting and auditing firm that employs more than 70,000 5 6 employees in the Americas. ECF No. 198-6 at 19-20, 44. By PwC’s own account, its “workforce 7 is strikingly young.” ECF No. 198 at 13 n.25. Two-thirds of its employees are in their 20s and 8 early 30s. ECF No. 198-4 at 115. Within that group, most are unmarried (75 percent) and without 9 children (92 percent). Id. “[F]or three out of four of them, PwC is their first job out of college.” Id. In 2013, PwC predicted that “almost 80 percent of PwC’s workforce will be comprised of 11 United States District Court Northern District of California 10 Millennials.” Id. PwC’s chairman Bob Moritz explains that PwC has historically had a young 12 workforce, in part because “most hires will eventually move on to other firms or other careers.” 2 13 In 2011-2012 PwC, along with the University of Southern California and London School of 14 Business, studied millennials in the workforce.3 PwC utilizes a central hiring system, with companywide policies and procedures for each 15 16 step of the hiring process, including job postings, interviewing, and hiring. Ex. 25. PwC also 17 maintains a central recruiting database. Ex. 58. Interview processes are governed by uniform 18 guidelines, and interviewers are trained centrally. Exs. 13, 25. Plaintiffs provide evidence about 19 PwC recruitment and human resources strategies which suggest that the company favors younger 20 employees and disfavors older applicants. For example, PwC emails refer to applicants over forty 21 as “too old,” “matur[e],” or “non-traditional,” and PwC interviewers utilized questions suggesting 22 that older applicants may not thrive with long hours or new technology. ECF No. 198-5 at 79 23 (describing some candidates as “too old” and some as “a bit young”); id. at 26 (referring to a 24 candidate as “mature”); id. at 35 (rating non-traditional candidate as highly as possible); ECF No. 25 26 27 28 2 Bob Moritz, The U.S. Chairman of PwC on Keeping Millennials Engaged, https://hbr.org/2014 /11/the-us-chairman-of-pwc-on-keeping-millennials-engaged (Nov. 2014), cited in ECF No. 198 at 13 n.25. 3 Id. 2 1 198-4 at 28; ECF No. 198-8 at 55. Plaintiffs also explain that recruiters appear disinterested in 2 older applicants at recruiting events. ECF No. 198-8 at 32; id. at 92; id. at 248. PwC features 3 predominantly young people on its website. ECF No. 198-6 at 1.4 Plaintiffs also allege that PwC steers older applicants into less desirable seasonal positions, 4 5 referred to as the Flexibility Talent Network (“FTN”), which have lesser benefits and fewer 6 opportunities for training and career advancement. ECF No. 198 at 16. Moreover, PwC recruits 7 along two separate tracks, “campus” and “experienced,” and much of PwC’s associate hiring is on 8 the campus track. PwC interns come exclusively from campus hiring and 85-90% of interns 9 convert into full-time associates. Exs. 45, 90. Moreover, PwC spends far more money on campus 10 recruiting than it does on experienced track recruiting. Ex. 42. Plaintiffs now seek to certify a collective action of “all individuals aged 40 and older who, United States District Court Northern District of California 11 12 from October 18, 2013 forward, applied or attempted to apply but were not hired for a full-time 13 Covered Position (Associate, Experienced Associate, and Senior Associate) in the Tax or 14 Assurance lines of service.” ECF No. 198 at 26-27. Putative collective action members who 15 “attempted to apply” are also called “deterred applicants.” See, e.g., ECF No. 211 at 28; ECF No. 16 218 at 20.5 To qualify for one of these covered positions, applicants must have a bachelor’s or 17 master’s degree in a particular field (for example, accounting or taxation), a minimum grade point 18 average (“GPA”), a commitment to obtain a certified public accountant (“CPA”) license, and 19 between zero and four years of experience. ECF No. 198-7 at 1-16. Plaintiff declares that he Steve Rabin applied for a position as a Seasonal Experienced 20 21 Associate at the age of 50. ECF No. 198-8 at 208-09. At his interview, a senior manager asked, 22 23 24 25 26 27 28 For example, the declaration of Kelli King states, “the pictures on PwC’s website depicted only younger people, and its promotional quotes include statements like, ‘I went to PwC out of college.’” ECF No. 198-8 at 159. Cynthia Woolbright declares that “when I visited PwC’s website in 2014 and 2017 to look at job postings and apply for jobs, I noticed that the website featured mostly young people.” Id. at 251. Joycelyn Wooten states that “PwC’s website, which features college campus career fairs and on-campus interviewing, also illustrates that PwC’s recruitment efforts are mainly focused on young, college-aged individuals.” Id. at 260. 4 This group is not every “deterred applicant,” but only that subset “who applied to FTN (i.e., nonCovered) positions and those who expressed interest in applying to the Covered Positions but whom PwC screened out or steered away before they could apply.” ECF No. 218 at 20. 3 5 1 “The people in the cubicles are much younger than you. How would you fit in? Would you be 2 able to work for a younger manager or director?” Id. at 209. Rabin answered the question 3 satisfactorily, but was not hired for the position. He states that he could tell from the question and 4 the manager’s tone of voice that he “viewed [Rabin’s] age as a disadvantage.” Id. Rabin also 5 states that he attempted to apply on a separate occasion for an Associate position posted on PwC’s 6 “campus” website, but was unable to do so because he did not have a school email or mailing 7 address. Id. at 210. Plaintiff John Chapman declares that he was qualified for a position at PwC, and applied 8 9 “numerous” times while he was between the ages of 45 and 48, but never received a position. Id. at 61. In a 2014 interview, a PwC manager asked Chapman whether he would be comfortable 11 United States District Court Northern District of California 10 working with young people. Id. at 61-62. The manager “admitted that this was likely an 12 inappropriate question to ask a candidate.” Id. at 62. Chapman did not get the job. During his 13 three-year job application period, Chapman “attended several PwC ‘meet and greet’ and pre- 14 interview events where [he] met approximately twenty to thirty PwC Associates, Experienced 15 Associates, and Senior Associates. None of them appeared to be over the age of 30.” Id. While 16 PwC employees described Chapman in internal emails as “very smart” and thought “highly of 17 him,” ECF No. 198-5 at 73, they also described him as “non-traditional,” “matur[e],” and “not the 18 right fit.” Id.; ECF No. 197-5 at 27. Both Rabin and Chapman state that their inability to obtain employment at PwC has hurt 19 20 their larger career prospects. According to Rabin, “a significant portion (probably the vast 21 majority) of accounting opportunities that [he is] interested in require ‘Big Four’ accounting 22 experience.6 In other words, PwC (in tandem with its three main competitors) functions as a 23 gateway employer in the accounting industry. [His] inability to secure a job with PwC has 24 negatively affected [his] efforts to secure other accounting employment.” ECF No. 198-8 at 62. 25 Similarly, Chapman states that “as a ‘Big 4’ firm, [PwC] functions as a gateway employer for the 26 accounting industry.” Id. When Chapman has interviewed at other employers, they have asked 27 28 6 The Big Four firms are the four largest accounting firms: PwC, Deloitte, KPMG, and Ernst & Young. 4 1 why he did not have Big 4 experience or why he was not currently working at a Big 4 firm. 2 Plaintiffs also offer the written testimony of Dr. David Neumark, a labor economist. Dr. 3 Neumark studied preliminary hiring data from PwC and found “very strong statistical deviations 4 from age-neutrality in hiring . . . strongly consistent with discrimination in favor of younger 5 applicants.” ECF No. 198-3 ¶¶ 5, 14, 21. Neumark concluded that over a three-and-a-half year 6 period, PwC hired younger applicants six times more often than older applicants. Id. ¶¶ 5, 14, 7 Table 1. In his deposition, Neumark explained that he did not assess whether older applicants 8 were discouraged from applying to PwC. ECF No. 211-4 at 9. Likewise, Neumark did not assess 9 whether any other variables which correlate with age played a role in the statistical disparity. Id. 10 at 13-14. 23 individuals have already opted into the collective action, and 28 collective members and United States District Court Northern District of California 11 12 potential members, who applied to covered positions and were qualified but rejected, submitted 13 declarations in support of Plaintiffs’ motion. ECF No. 198-1 at ¶¶ 127-155. 14 II. 15 LEGAL STANDARD Plaintiffs seek collective certification of their Age Discrimination in Employment Act 16 (“ADEA”) case under the standards set forth under the Fair Labor Standards Act (“FLSA”), 29 17 U.S.C. § 216(b). The ADEA incorporates the collective action procedures of FLSA, set forth in 18 29 U.S.C. § 216(b). See 29 U.S.C. § 626(b); Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124, 19 1130 (N.D. Cal. 2009) (“[B]ecause ADEA incorporates § 16(b) of the Fair Labor Standards Act 20 into its enforcement scheme, the same rules govern judicial management of collective actions 21 under both statutes. . . .”). 22 29 U.S.C. § 216(b) provides that actions against employers may be brought “in any Federal 23 or State court of competent jurisdiction by any one or more employees for and in behalf of himself 24 or themselves and other employees similarly situated.” A suit brought on behalf of other 25 employees is known as a “collective action,” a type of suit that is “fundamentally different” from 26 class actions. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013) (citing Hoffmann–La 27 Roche Inc. v. Sperling, 493 U.S. 165, 169–70 (1989)). For example, unlike in class actions, 28 members of a collective action must file a “consent to sue” letter with the court in which the action 5 1 is brought creating an opt-in class. 29 U.S.C. 216(b). Also different is that “‘conditional 2 certification’ does not produce a class with an independent legal status, or join additional parties to 3 the action.” Genesis, 569 U.S. at 75. Collective actions allow aggrieved employees “the 4 advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffman– 5 LaRoche, 493 U.S. at 170. 6 Certification requires a showing that the potential class members are “similarly situated.” 7 Lewis, 669 F. Supp. 2d at 1127 (citation omitted). A majority of courts, including district courts 8 in this circuit, follow a two-step process for determining whether a class is “similarly situated.” 9 See Harris v. Vector Marketing Corp., 753 F. Supp. 2d 996, 1003 (2010); Lewis, 669 F. Supp. 2d 10 United States District Court Northern District of California 11 at 1127. At the first step, alternatively called “the notice stage” and “conditional certification,” the 12 court considers whether the plaintiff submitted sufficient evidence to justify the conditional 13 certification of the class and the sending of notice of the action to potential class members. Lewis, 14 669 F. Supp. 2d at 1127. In making this determination, “the court requires little more than 15 substantial allegations, supported by declarations or discovery, that the putative class members 16 were together the victims of a single decision, policy, or plan.” Id. (internal quotation marks 17 omitted). In other words, “[b]ecause the court generally has a limited amount of evidence before 18 it, the initial determination is usually made under a fairly lenient standard and typically results in 19 conditional class certification.” Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 467 (N.D. Cal. 20 2004); see also Lewis, 669 F. Supp. 2d at 1127. “The fact that a defendant submits competing 21 declarations will not as a general rule preclude conditional certification.” Harris v. Vector Mktg. 22 Corp., 716 F. Supp. 2d 835, 838 (N.D. Cal. 2010); see also Ramirez v. Ghilotti Bros. Inc., 941 F. 23 Supp. 2d 1197, 1203 (N.D. Cal. 2013) (“[C]ourts need not even consider evidence provided by 24 defendants at this stage[.]”). 25 “At the second step of the two-step inquiry, ‘the party opposing the certification may 26 move to decertify the class once discovery is complete.’” Heath v. Google Inc., 215 F. Supp. 3d 27 844, 852 (N.D. Cal. 2016) (quoting Adams v. Inter–Con Sec. Sys., Inc., 242 F.R.D. 530, 536 28 (N.D. Cal. 2007)). At that stage, the court evaluates the collective action under a stricter standard 6 1 for “similarly situated.” Lewis, 669 F. Supp. 2d at 1127. At that point, the court considers several 2 factors, “including the disparate factual and employment settings of the individual plaintiffs; the 3 various defenses available to the defendant which appear to be individual to each plaintiff; fairness 4 and procedural considerations; and whether the plaintiffs made any required filings before 5 instituting suit.” Id. “Considerations involving the merits of claims are more appropriately 6 addressed at the second stage of the analysis when [fewer] facts are in dispute.” Kellgren v. Petco 7 Animal Supplies, Inc., No. 13CV644 L KSC, 2015 WL 5167144, at *4 (S.D. Cal. Sept. 3, 2015). 8 III. 9 DISCUSSION To show that certification is appropriate, Plaintiffs “must provide substantial allegations, supported by declarations or discovery, that the putative class members were together the victims 11 United States District Court Northern District of California 10 of a single decision, policy, or plan.” Saleh v. Valbin Corp., 297 F. Supp. 3d 1025, 1033 (N.D. 12 Cal. 2017) (internal quotations and citations omitted). Stated differently, Plaintiffs must show that 13 there is “some identifiable factual or legal nexus [that] binds together the various claims of the 14 class members in a way that hearing the claims together promotes judicial efficiency and comports 15 with the broad remedial policies underlying the FLSA.” Russell v. Wells Fargo & Co., No. 07- 16 CV-3993-CW, 2008 WL 4104212, at *3 (N.D. Cal. Sept. 3, 2008). Plaintiffs argue that they have 17 offered more than sufficient evidence to show that PwC deliberately recruits and hires younger 18 workers to the detriment of older workers, and that these documents, witness declarations, and 19 statistical analyses “bind[] together” the class members’ claims and make collective adjudication 20 appropriate. ECF No. 198 at 28. 21 PwC argues that this evidence does not show a company-wide policy or practice. The 22 company describes ageist comments by PwC personnel as “anomalous.” ECF No. 211 at 13-14. 23 PwC focuses on minor differences between the experiences of the declarants, for example that 24 “some applied through their colleges despite being over 40, while others applied to Associate-level 25 positions online rather than on campus,” or that “some declarants attended PwC recruiting events 26 and felt ignored or unwelcome, while others attended similar events and were encouraged to 27 apply.” Id. at 10-11. Finally, PwC notes that Dr. Neumark’s statistical evidence is subject to 28 alternative interpretations that are inconsistent with liability. Id. at 16-18. 7 1 These differences, while perhaps significant at a later stage of the case, are insufficient to 2 defeat conditional certification. In Heath v. Google, an ADEA case alleging age discrimination in 3 hiring computer engineers, the defendant made similar arguments in opposing conditional 4 certification. 215 F. Supp. 3d at 854 (arguing that the only uniform policy is an antidiscrimination 5 policy, and that age-related comments by recruiters and interviews were mere “stray remarks”). 6 That court concluded that the defendant’s arguments went to the merits and should be addressed at 7 a future stage. Id.; see also c.f. Deatrick v. Securitas Sec. Servs. USA, Inc., No. 13-CV-05016- 8 JST, 2014 WL 5358723, at *4 (N.D. Cal. Oct. 20, 2014) (reserving the consideration of “disparate 9 factual and employment settings” and “various defenses available to the defendant with respect to each plaintiff” for the second stage of the certification process). Here, the Court likewise 11 United States District Court Northern District of California 10 concludes that Plaintiffs have adequately shown a uniform decision, policy, or plan on the basis of 12 PwC’s centralized and uniform hiring policies, and the substantial evidence of age disparities in 13 hiring. ECF No. 198 at 13-25 (including declarations, PwC human resources policy documents, 14 and statistical analyses showing a central uniform hiring policy which results in age disparities in 15 hiring). PwC’s arguments to the contrary would be better addressed to the second stage of the 16 proceedings. 17 The Court’s inquiry does not end there, however. In addition to a showing that “the putative 18 class members were together the victims of a single decision, policy, or plan,” Plaintiffs must 19 show at this stage that they are “generally comparable to those they seek to represent.” Villa v. 20 United Site Servs. of Cal., No. 5:12-CV-00318-LHK, 2012 WL 5503550, at *13 (N.D. Cal. Nov. 21 13, 2012). Plaintiffs seek to certify a collective of “all individuals aged 40 and older who, from 22 October 18, 2013 forward, applied or attempted to apply but were not hired for a full-time 23 Covered Position (Associate, Experienced Associate, and Senior Associate) in the Tax or 24 Assurance lines of service.” ECF No. 198 at 26-27. PwC argues that under Plaintiffs’ broad 25 proposed class, “unqualified applicants . . . are not similarly situated to Chapman and Rabin, who 26 allege they were qualified for the positions to which they applied,” and received an interview. 27 28 8 1 ECF No. 211 at 18.7 Plaintiffs do not dispute that their proposed collective includes unqualified 2 applicants. As to this point, PwC’s arguments are more persuasive. The difference between Rabin and 3 4 Chapman on the one hand, and facially unqualified applicants on the other, prevents the Court 5 from conditionally certifying the class. “Although the standard for conditional certification at the 6 notice-stage is lenient, there is a standard.” Heath, 215 F. Supp. 3d at 850 (emphasis added). A 7 plaintiff “need not show that his position is or was identical to the putative class members’ 8 positions; a class may be certified . . . if the named plaintiff can show that his position was or is 9 similar to those of the absent class members.” Labrie v. UPS Supply Chain Sols., Inc., No. C-083182 PJH, 2009 WL 723599, at *4 (N.D. Cal. Mar. 18, 2009) (citing Edwards v. City of Long 11 United States District Court Northern District of California 10 Beach, 467 F. Supp. 2d 986, 990 (C.D. Cal. 2006)) (emphasis added). Chapman and Rabin cannot 12 make this showing, because they are not similarly situated to facially unqualified applicants. PwC requires applicants to have a degree in a relevant field, have earned a minimum 13 14 undergraduate GPA, and, for Experienced and Senior Associate positions, relevant work 15 experience. ECF No. 198-7 at 1-41. PwC does an initial screen for basic qualifications, and only 16 interviews candidates who pass the initial screen. ECF No. 212-3 at 24-25. This initial screen 17 significantly narrows the pool of applicants. ECF No. 211 at 21. Chapman and Rabin were 18 facially qualified: they possessed a college degree in a relevant major, had attained the required 19 GPA, and had passed the CPA examination. ECF No. 198-8 at 61, 208. As such, they passed the 20 initial screen and received interviews. Id. Not only will the inquiry as to their claims be different 21 from the one as to unqualified applicants’ claims, but it is hard to imagine how unqualified 22 applicants could ever be part of the class, given that an ADEA plaintiff “must show, among other 23 things, that he was qualified for the position.” Heath, 215 F. Supp. 3d at 857. This case is like Heath. In that case, the court considered a motion to conditionally certify an 24 25 26 27 28 7 PwC makes additional arguments against certification including: (1) that campus recruiting is lawful, ECF No. 211 at 10; (2) that many recruiters do not know applicants’ age when they reject them, Id. at 24-25; and (3) that it is legal to conduct a generation focused workforce study, ECF No. 212-3 at 11. The Court declines to address these arguments because a discussion of the merits is not appropriate at this stage. Heath, 215 F. Supp. 3d at 855. 9 1 age discrimination collective action against Google. Named plaintiff Cheryl Fillekes sought to 2 certify a class under the FLSA consisting of persons over 40 who interviewed in-person for certain 3 positions at Google. Id. at 853. The district court conditionally certified that class. Another 4 plaintiff, Robert Heath, sought to conditionally certify a different class consisting of “all 5 applicants” for certain specified jobs from 2010 to the present “who were 40 years of age or older 6 at the time of their application[,] and who were rejected for the position.” Id. at 855. For that 7 proposed class, there was no requirement that class members have been invited for an in-person 8 interview or passed any kind of screening. The district court declined to certify that class because 9 although Heath was facially qualified, the “proposed class would include an unknown number of applicants who demonstrate no plausible qualifications for the job.” Id.; see also Trinh v. JP 11 United States District Court Northern District of California 10 Morgan Chase & Co., No. 07-CV-1666, 2008 WL 1860161 (S.D. Cal. Apr. 22, 2008) (declining 12 to certify collective for failure to show Plaintiffs were similarly situated to class members). The 13 court noted that “there are likely to be wide disparities in the class members’ qualifications and/or 14 experiences” such that certification was inappropriate. Heath, 215 F. Supp. 3d at 857-58.8 15 Similarly here, it is clear that facially unqualified applicants are included in Plaintiffs’ 16 proposed class. “[Rabin’s] vast class would include every individual applicant over the age of 40 17 without regard to their qualifications, including, for example, a lawyer applying for [an 18 Experienced Associate].” Id. at 857. Because Plaintiffs Rabin and Chapman were facially 19 qualified when they applied, ECF No 198-8 at 61, 208, the Court concludes they are not 20 substantially similar to facially unqualified applicants. Plaintiffs argue on reply that limiting the class to qualified applicants prevents them from 21 22 attacking discrimination in the initial screening process itself. ECF No. 218 at 19-20. They note 23 that PwC recruiters are permitted to exercise discretion in the application of the screening criteria, 24 such that “an offer can be extended to a candidate with any GPA,” and that while “[m]ajors should 25 26 27 28 The collective action the court declined to certify in Heath was narrower than Plaintiffs’ proposed collective. The plaintiff in that case sought to certify a collective of all rejected applicants for particular positions within Google who were over 40. Heath, 215 F. Supp. 3d at 855. In addition to all rejected applicants over 40, the proposed class in this case includes deterred non-applicants over 40. ECF No. 198 at 26-27. 8 10 1 be relevant to the specific [line of service] desired,” and that “[t]ypical majors are Accounting, 2 Finance, Business, and MIS/Computer Science,” no particular undergraduate major is actually 3 required. Id. (quoting Exs. 153, 154) (emphasis added by Plaintiffs). They allege that the 4 screening process itself is another mechanism by which PwC discriminates against older 5 applicants, given that pre-interview rejection rates are higher for older applicants than younger 6 ones. Id. at 19. While there may be merit to Plaintiffs’ claims about the screening process – a 7 question the Court does not decide – the fact remains that neither Rabin nor Chapman is typical of 8 a facially unqualified applicant. Plaintiffs must find another way to challenge discrimination in 9 the initial screen, either through its existing named plaintiffs – who were rejected at the initial screening stage for some jobs, although they were facially qualified – or through a different named 11 United States District Court Northern District of California 10 plaintiff, if they wish to do so.9 Likewise, Rabin and Chapman are not similarly situated to potential class members who 12 13 were deterred from applying, because they did apply. ECF No. 212-3 at 28. In fact, Plaintiffs do 14 not identify any individual deterred from applying who was over forty. ECF No. 198-8 at 171 15 (declarant Salvador Maciel explaining he was deterred from applying just before his 40th birthday; 16 all other declarants applied). Other courts in this circuit have concluded that plaintiffs who 17 applied could not represent those deterred from applying in an ADEA collective certification case 18 because they were not similarly situated. Pines v. State Farm Gen. Ins. Co., No. SACV89- 19 631AHS(RWRX), 1992 WL 92398, at *12 (C.D. Cal. Feb. 25, 1992). In their reply brief and at the hearing on this motion, Plaintiffs attempted to recast “deterred” 20 21 applicants as those who actually applied, but were steered away from covered positions into 22 seasonal positions, and those who expressed interest in applying, but whom PwC steered away. 23 ECF No. 218 at 20; ECF No. 231 at 36 (arguing that plaintiff Rabin should be considered a 24 “deterred applicant” because “[a] recruiter reached out to him and steered him towards one of 25 these FTN roles as opposed to inviting him to a full-time covered position”). As an initial matter, 26 27 28 9 While Rabin and Chapman did not pass the initial screen or receive an interview for some applications, ECF No. 198-8 at 61, 208, they were facially qualified on each occasion they applied because they possessed the requisite GPA, degree, and other qualifications. 11 1 this new definition is not consistent with either the complaint or the dictionary. The complaint 2 states that “PwC’s policies and practices have the effect of deterring prospective applicants ages 3 40 and older from applying and denying job opportunities to those individuals ages 40 and older 4 who do apply.” ECF No. 42 ¶ 11; see also id. ¶ 13 (same). And Merriam-Webster defines “deter” 5 to mean “to turn aside, discourage, or prevent from acting.” Merriam-Webster’s Collegiate 6 Dictionary 340 (11th ed. 2012). More importantly, Rabin and Chapman are not similarly situated 7 to the class they seek to represent because they did in fact apply to covered positions. ECF No. 8 198-8 at 61, 208.10 Because Plaintiffs are not similarly situated to the class they seek to represent, the Court 10 denies the motion to certify the proposed collective. The Court will not attempt to narrow the 11 United States District Court Northern District of California 9 Plaintiffs’ proposed class to cure the defects the Court identifies in this order. Rather, the Court 12 denies the motion without prejudice so that Plaintiffs can propose a class to which they are 13 similarly situated, and Defendants can defend against that proposed class. See Rivera v. Saul 14 Chevrolet, Inc., No. 16-CV-05966-LHK, 2017 WL 3267540, at *11 (N.D. Cal. July 31, 2017); see 15 also Heath, 215 F. Supp. 3d at 858 (rejecting Plaintiff’s request to narrow a class if the court 16 concluded Plaintiff was not substantially similar to that class because to “do so would improperly 17 prevent [Defendant] from identifying infirmities in such an alternative definition and deprive the 18 Court of sufficient evidence and argument on which to base such a determination”). 19 /// 20 21 22 23 24 25 26 27 28 10 The Court need not address the merits at this stage but notes that little case law supports the proposition that deterred applicants can maintain an ADEA collective action. Wynn v. Nat’l Broad. Co., 234 F. Supp. 2d 1067, 1102 (C.D. Cal. 2002) (dismissing without prejudice because the court was “highly skeptical” of plaintiffs’ ability to plead an ADEA collective on the basis of deterred applicants but allowing plaintiffs to amend so individual applicants could attempt to plead futility of applying); Pines, 1992 WL 92398, at *12 (declining to certify deterred applicants). But see Hyman v. First Union Corp., 982 F. Supp. 1, 8 (D.D.C. 1997) (concluding that an employee who expressed interest in applying to a position but was told he was overqualified could be added to an ADEA collective action). As Plaintiffs admit, “identifying some types of deterred applicants could [also] pose ascertainability challenges.” ECF No. 218 at 20. Plaintiffs argue their class is ascertainable nonetheless because PwC maintains a list of potential applicants in its “Smashfly” database, which tracks individuals interested in working at PwC. Id. at 21-22. But the Court need not address the question now because it concludes the class cannot be conditionally certified for other reasons. 12 CONCLUSION 1 2 For the foregoing reasons, the Court DENIES the motion without prejudice. Plaintiffs may 3 file an amended motion for collective certification within thirty (30) days. Failure to cure the 4 deficiencies identified in this order or failure to file a subsequent motion within 30 days will result 5 in a denial with prejudice of conditional certification of FLSA collective action. 6 7 8 9 IT IS SO ORDERED. Dated: July 26, 2018 ______________________________________ JON S. TIGAR United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13