Receipl Number

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GAROLD ALLEN, SYLVESTOR J. DEROSA, WALTER MAGNESS, DAVID MCKILLOP, DONALD MURPHY, SUZANNE J. NOVAK, and RONNIE WILLMS, on behalf of themselves and those similarly situated,
Plaintiffs, -vs-
SEARS ROEBUCK AND CO., SEARS HOME IMPROVEMENT PRODUCTS, INC. and SEARS HOLDINGS CORPORATION, jointly and severally.

cas~: 2:07-cv-11706
Assigned To: Steeh, George Caram
Referral Judge: Majzoub, Mona K Filed: 04-17-2007 At 11:58 AM cmp allen, et al v. sears. roebuck,
et al (tam)

~Ba-rry-SD~. eF~faegn~adna~n(~tPs3.~42-75-) --------~G~eo~ffre~y-Fi-eg~er~(P~30-44-1)----'

Darcie R. Brault (P43864)

Robert M. Giroux, Jr. (P47966)

DIB, FAGAN AND BRAULT, P.C.

FIEGER FIEGER KENNEY & JOHNSON, P.C.

Attorneys for Plaintiffs

Attorneys for Plaintiffs

25892 Woodward Avenue

19390 W. 10 Mile Road

Royal Oak, Ml 48067-0910

Southfield, Ml 48075

(248) 542-6300

(248) 355-5555

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COMPLAINT (CLASS ACTION)

I - INTRODUCTION

1. This is a proposed class action to vindicate the rights of former employees of Defendant SEARS, ROEBUCK AND CO. under the Age Discrimination in

Employment Act, as amended, 28 U.S. C. §621-634 (hereinafter "ADEA").

2.

Defendant SEARS HOLDINGS CORPORATION, through its predecessor

and wholly owned subsidiary, Defendant SEARS, ROEBUCK AND CO., offers installed

home improvement products and services to the public for purchase, including heating,

ventilation and air conditioning ("HVAC") products and installation services.

3. Defendant SEARS, ROEBUCK AND CO. employed approximately five hundred and fifty HVAC Sales Associates nationwide. HVAC Sales Associates worked from their homes on a commission basis. HVAC Sales Associates received "leads" from their respective home offices. HVAC Sales Associates were reimbursed for their business expenses, including mobile telephone use, mileage, etc. They received paid holiday, vacation and personal time using their "benefit rate," an hourly amount that changed quarterly dependent upon commissions earned.
4. Defendant SEARS, ROEBUCK AND CO. acquired other home improvement companies and combined some of them, in 2001, into a wholly owned subsidiary: Defendant SEARS HOME IMPROVEMENT PRODUCTS (hereinafter "Defendant SHIP" or "SHIP").
5. In 2004, Defendant SEARS, ROEBUCK AND CO., announced to its employees who worked as HVAC Sales Associates that their employment would be "transitioned" to SHIP, effective various dates dependent upon the Sales Associate's region. The Sales Associates were advised that their former department would no longer exist and that they would become employees of Defendant SHIP. By virtue of the "transition" Defendant SEARS, ROEBUCK AND CO. employees were terminated and hired by Defendant SHIP.
6. Defendants, per the implementation of the merger, dramatically changed HVAC Sales Associates' compensation. Approximately two hundred and eighty eight hours of paid time off per year was lost and business expenses were no longer to be reimbursed. Moreover, HVAC Sales Associates were required to be available more days and more hours and to travel greater distances for sales calls.
7. Far greater responsibilities were imposed upon the HVAC Sales
2

Associates, all for less compensation. The benefit of the "transition" ran to SHIP - a wholly owned subsidiary of Defendant SEARS, ROEBUCK AND CO., and now Defendant SEARS HOLDINGS CORPORATION.
8. As a result of the forced transition of HVAC Sales Associates to SHIP, and the dramatic changes that occurred, many HVAC Sales Associates were terminated or terminated their employment with Defendants.
9. The Plaintiffs named herein have brought this suit on behalf of themselves and the other similarly situated former HVAC Sales Associates, who at the time of their separation from employment with Defendants were age 40 and above and who terminated their employment or were terminated during the years 2004 through 2006.
II -JURISDICTION AND VENUE 10. This is a civil action over which original jurisdiction is vested in this Court by 28 U.S.C. §1331 (federal question jurisdiction) as well as the ADEA, as amended, 29
u.s.c. §621-634.
11. Venue is appropriate in this Court under 28 U.S.C. §1391 as it is brought in a judicial district in which the Defendants may be found at the time the action is commenced. Further, many of the Plaintiffs and class members reside in the State of Michigan, including counties located within the Eastern District of Michigan.
Ill -THE PARTIES Specific Allegations Regarding the Plaintiffs 12. Plaintiff SUSAN J. NOVAK, (date of birth 6/15/48), is a resident of the State of Michigan who became employed by Defendant SEARS, ROEBUCK AND CO. in 1980. Plaintiff NOVAK was employed in the Metro Detroit region as a HVAC Sales
3

Associate In late 2004, Plaintiff NOVAK was notified that her region would be "transitioned" to SHIP effective March 1, 2005.
13. As a result of the transition, Plaintiff NOVAK was forced to terminate her employment with Defendants on or about March 7, 2005 and retire.
14. Plaintiff SYLVESTER DEROSA, (date of birth 2/20/50), is a resident of the State of New York who became employed by Defendant SEARS, ROEBUCK AND CO. in 1971. Plaintiff DEROSA was employed in the Western Suffolk County. Long Island region as a HVAC Sales Associate. In late 2004, Plaintiff DEROSA was notified that his region would be "transitioned" to SHIP effective April 16, 2005.
15. As a result of the transition, Plaintiff DEROSA was forced to terminate his employment with Defendants on or about April 15, 2005 and retire.
16. Plaintiff DAVID MCKILLOP, (date of birth 5/15/44), is a resident of the State of Michigan who became employed by Defendant SEARS, ROEBUCK AND CO. in 1964. Plaintiff MCKILLOP was employed in the Midwest Region, including the Detroit/Ann Arbor area, as a HVAC Sales Associate. In late 2004, Plaintiff MCKILLOP was notified that his region would be "transitioned" to SHIP effective March 1, 2005.
17. As a result of the transition, Plaintiff MCKILLOP was forced to terminate his employment with Defendants on or about March 7, 2005 and retire.
18. Plaintiff DONALD MURPHY, (date of birth 8/5/47), is a resident of the State of North Carolina who became employed by Defendant SEARS, ROEBUCK AND CO. in 1976. Plaintiff MURPHY was employed in the Washington D.C. Metro region, including southern Maryland and northern Virginia as a HVAC Sales Associate. In late 2004, Plaintiff MURPHY was notified that his region would be "transitioned" to SHIP effective February 1, 2005.
4

19. As a result of the transition, Plaintiff MURPHY was forced to terminate his employment with Defendants on or about Apri119. 2005 and retire.
20. Plaintiff, WALTER F. MAGNESS, (date of birth 12/24/43), is a resident of the State of California who became employed by Defendant SEARS, ROEBUCK AND CO. in October 1970. Plaintiff MAGNESS was employed as an HVAC Sales Associate. In September 2004, Plaintiff was notified that his department would be "transitioned" to
SHIP. 21. As a result of the transition, Plaintiff MAGNESS was forced to terminate
his employment with Defendants on or about January 23, 2005 and retire. 22. Plaintiff, RONNIE WILLMS, (date of birth 9/12/53), is a resident of the
State of Tennessee who became employed by Defendant SEARS, ROEBUCK AND CO. in February 1990. Plaintiff WILLMS was employed as an HVAC Sales Associate. In late 2004, Plaintiff was notified that his department would be "transitioned" to SHIP.
23. Plaintiff WILLMS "transitioned" to SHIP on or about January 26, 2005. 24. As a result of the transition, Plaintiff WILLMS was forced to terminate his employment with Defendants on April 5, 2005. 25. Plaintiff, GAROLD ALLEN, (date of birth 2/27/57}, is a resident of the State of Illinois who became employed by Defendant SEARS, ROEBUCK AND CO. on March 30, 1974. Plaintiff ALLEN was employed as an HVAC Sales Associate in the Midwest/HVAC Central Region. On November 1, 2004, Plaintiff and the other Sales Associates in his region were "transitioned" to SHIP. 26. Plaintiff ALLEN was subsequently terminated on August 10, 2005. 27. Plaintiffs filed timely complaints with the Equal Employment Opportunity Commission alleging violation of the AD EA.
5

28. Plaintiffs ALLEN, DEROSA, MCKILLOP, MURPHY, NOVAK and WILLMS were sent Right to Sue letters on January 18, 2007.
29. Plaintiff MAGNESS was sent a Right to Sue letter on April 9, 2007.
Allegations Regarding the Defendants 30. Defendant SEARS, ROEBUCK AND CO. is incorporated in the State of New York and conducts business in each of the United States, including Michigan. 31. Defendant SEARS HOLDINGS CORPORATION is a publicly traded Delaware corporation doing business throughout the United States, including the State of Michigan. 32. Defendant SHIP is a Pennsylvania corporation doing business throughout the United States, including Michigan.
IV- FACTUAL ALLEGATIONS 33. The Plaintiffs and similarly situated HVAC Sales Associates labored for the benefit of Defendant SEARS, ROEBUCK AND CO. for decades, building a substantial HVAC product and installation business. 34. As HVAC Sales Associates, the Plaintiffs and those similarly situated, worked from their homes selling HVAC products and installation services. 35. HVAC Sales Associates were expected to work a forty-hour workweek. 36. HVAC Sales Associates were paid on a commission-only basis, with the amount of commission tied to the product sold. 37. HVAC Sales Associates also received, as part of their compensation, paid time off: vacation (up to five weeks), personal days and paid holidays. Because there was no set hourly rate of pay for HVAC Sales Associates, their paid time off was
6

calculated by an average of their commissions for the previous quarter, known as the "benefit rate."
38. HVAC Sales Associates were also eligible for sales promotions, including bonuses and prizes.
39. HVAC Sales Associates were provided benefits including medical, dental, disability and life insurance, and stock options.
40. HVAC Sales Associates were reimbursed the amounts they expanded on behalf of their employer, including mileage, mobile telephone calls, postage, copies, etc.
41. Each HVAC Sales Associate was assigned a territory which was shared with a few other HVAC Sales Associates.
42. HVAC Sales Associates were encouraged to self-generate sales leads and were rewarded for doing so by way of increased commissions.
43. HVAC Sales Associates were also provided leads based upon equitable distribution within the assigned territories.
44. The HVAC Sales Associates followed the sale from start to finish: receiving the sales call, scheduling the appointment, writing the estimate, procuring contractors, obtaining credit approval. etc., culminating in a satisfied customer.
45. The HVAC Sales Associates were trained to be "counselor" sales associates, working with the customers to fulfill their HVAC needs. often having multiple customer contacts prior to obtaining a sale. Consequently, the cancellation rate was extremely low.
46. The flexibility of the HVAC Sales Associate position attracted those with exceptional sales skills who excelled in an independent role Well-matched employees continued in the position for decades.
7

47. Defendant SEARS, ROEBUCK AND CO. acquired various home improvement companies specializing in window installation, vinyl siding, kitchen remodels, etc. These companies were combined, in 2001, into a single corporation: Defendant SHIP, a wholly owned subsidiary of Defendant SEARS, ROEBUCK and CO.
48. In late 2004, only days before the vary first transition was to take place, Defendant SEARS, ROEBUCK AND CO. announced that the HVAC Sales Associates would be "transitioned" to Defendant SHIP.
49. Essentially, this meant that each HVAC Sales Associate would be terminated from employment by Defendant SEARS, ROEBUCK AND CO. and hired by Defendant SHIP.
50. Defendant SEARS, ROEBUCK AND CO_ would no longer employ HVAC Sales Associates.
51. There were stark differences in the HVAC Sales Associate's employment by Defendant SEARS, ROEBUCK AND CO. when compared to the SHIP positions.
52. SHIP Sales Associates were expected to be available for work seventytwo hours each week.
53. While SHIP Sales Associates are paid on a commission only basis, the commission amounts per product were to be controlled by Defendant SHIP and differed from the commissions established by Defendant SEARS, ROEBUCK AND CO.
54. Because Defendant SHIP priced many of the products higher, the ability to sell them was reduced and, therefore, the ability to earn the commissions was reduced.
55. Defendant SHIP would not provide any paid time off to former HVAC Sales Associates: no vacation, no personal days, no holidays.
56. The cost of doing business in terms of expanses, e.g. mileage, postage,
8

telephone, etc., upon transition, would be hoisted squarely upon the Sales Associates, who would no longer be reimbursed for such expenses.
57. The sales territories to which the Sales Associates would be assigned at Defendant SHIP were dramatically larger compared to those with Defendant SEARS, ROEBUCK AND CO., (approximately five times larger) increasing the amount of travel required and thereby increasing un-reimbursed business expenses, decreasing the potential number of appointments an associate could complete in a day and thereby decreasing the number of potential sales.
58. Sales appointments would be made exclusively by Defendant SHIP at the discretion of its managers.
59. The Defendant SHIP sales model is very different - focusing upon high pressure sales tactics, including a "one call close" rule. Sales Associates are required to make the sale on the first call to the customer or receive a substantially reduced commission or none at all.
60. These high-pressure sales tactics result in a higher average cancellation rate with Defendant SHIP.
61. As a result of the "transition," many HVAC Sales Associates, age 40 and above, with long tenure within the company were forced to terminate their employment with Defendants or were terminated.
V- CLASS ACTION ALLEGATIONS 62. Plaintiffs bring this class action on behalf of themselves and other similarly situated persons who have been similarly harmed by Defendants in the matter described herein. 63. Specifically, Plaintiffs bring this action as a class action on behalf of all
9

former HVAC Sales Associates who were over the age of 40 at the time of the "transition" to SHIP and terminated their employment or were terminated between 2004 and 2006 as a result of the transition to SHIP.
64. Upon information and belief, the number of members of the Plaintiffs' class exceed 200 and is so numerous that individual joinder into a single action is
impracticable. 65. There are questions of law and fact that are common to all class
members. The central questions of law and fact involved in this action are of a common
and general interest. 66. Common, legal, and factual issues predominate over any questions
affecting only individual members of the class. 67. The claims of the named representative Plaintiffs are typical of the claims
of all class members because: (a) they were identically situated as HVAC Associates, (b) they all received the same compensation package as HVAC Associates, (c) they all were similarly situated with respect to the terms and conditions of their employment as HVAC Associates, (d) they were all terminated by Defendant SEARS, ROEBUCK AND CO. and were "transitioned" to SHIP, (e) they terminated their employment or were terminated at or after the time of the "transition" from Defendants for the reasons set
forth herein. 68. The class representatives have an incentive and are committed to
vigorously prosecuting this action because they have actually suffered losses as a result of Defendants' actions.
69. Plaintiffs have retained qualified counsel to represent them in this matter. 70. A class action is the only realistic method available for the fair and efficient
10

adjudication of this controversy. Were each individual required to bring a separate lawsuit, the resulting multiplicity of proceedings would cause undue hardship and expense with litigants and the Court. The prosecution of separate actions would also create the risk of inconsistent rulings, which may be dispositive of the interests of class members, who are not parties to the adjudication and/or may substantially impede the class members' ability to protect their interest, and therefore would be contrary to the
interest of justice and equity. 71. This matter should also proceed as a class action because Defendants'
acts and/or omissions apply generally to members of the class warranting equitable
relief. Count 1- Violation of the Age Discrimination in Employment Act
72. Plaintiffs incorporate paragraphs 1 through 71 above as if specifically
repeated herein. 73. At the time of their termination from employment with Defendants,
Plaintiffs were qualified for protection against age discrimination under ADEA. 74. Defendants violated the ADEA prohibition against age discrimination in
"transilioning" Plaintiffs employment from Defendant SEARS, ROEBUCK AND CO. to an inferior position with Defendant SHIP, causing a disproportionate number of employees age 40 and above to terminate their employment, or to be terminated.
75. The decision of Defendants to "transition" all HVAC Sales Associates from Defendant SEARS, ROEBUCK AND CO. to Defendant SHIP had the consequence of causing a statistically significant number of employees, age 40 and above, to terminate their employment or be terminated and thus such decision had a disparate impact on employees age 40 and above in violation of the ADEA.
11

76. As a direct and proximate result of Defendants' violation of the ADEA, Plaintiffs and members of the proposed class have experienced economic harm, including loss of back and front pay and other employee benefits.
77. By reason of the discrimination suffered, Plaintiff and the members of the proposed class are entitled to all equitable remedies available under the AD EA.
78. Attorneys' fees should be awarded under the ADEA.
VI- PRAYER FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and the class members whom they seek to represent, request the following relief:
(a) Acceptance of jurisdiction of this cause; (b) Certification of the case as a class action on behalf of the proposed
Plaintiff class, and designation of the Plaintiffs as representatives of the class and their counsel of record as class counsel; (c) Declare and adjudge that Defendants have violated Plaintiff's rights under the ADEA; (d) An injuction against Defendants from engaging in any further unlawful practices, policies, customs, usages, or actions that have a disparate impact upon employees protected under the ADEA; (e) An award of back pay, front pay, the value of lost benefits and other equitable relief for the Plaintiffs and the class they seek to represent; (f) An award of liquidated damages under the ADEA; (g) An award of litigation costs and expenses, including reasonable attorney fees to the Plaintiffs and class members; (h) Pre-judgment and post-judgment interest; and,
12

(i) Such other and further relief as this Court may deem just and proper.

DIB, FAGA~?D BRAUL~_:)~.:C·
By: fh9:: S. Fagan (P 275) Darcie R. Brault P43864) Attorney for Plaintiffs 25892 Woodward Avenue Royal Oak, Ml 48067-0910

FIEGER FlEGER KENNEOY & JOHNSON, P.C.

By/!Jw ~ ~· ~ »1 J' Geoffrey Fieger (P30441

w(

Robert M. Giroux, Jr. (P47966}

Attorneys for Plaintiffs

19390 W. 10 Mile Road

Southfield, Ml 48075

Dated: April16, 2007 PLAINTIFFS' DEMAND FOR JURY TRIAL

NOW COME the above named Plaintiffs, by and through their attorneys, DIB,

FAGAN AND BRAULT, P.C., and hereby demand trial by jury on the above matter.

Respectfully submitted,
018, FAGAN AND BRAULT, P.C.
By~~~--=i.igan275) Darcie R. Brault (P43864) Attorney for Plaintiffs 25892 Woodward Avenue Royal Oak, Ml 48067-0910

FIEGER FIEGER KENNEY & JOHNSON, P.C.
By:.~~~~~~~~~· eoffrey Fieger (P30441)
Robert M. Giroux, Jr. (P47966) Attorneys for Plaintiffs 19390 W. 10 Mile Road Southfield, Ml 48075

Dated: Apri116, 2007

13

CIVIL COVER SHEET arnse~Countyand~rs County iu which this actiou

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DEFENDANTS
Sears Roebuck and Cu., Scar'S Kame Impruwmcnt Products, Inc., and Sc;;~.rs lloldi:ngn Corporation, jointly and severally,

situated,
(b) Coutlty of Residet.Joc of First Li~ted Plui:utiff l.ockEortt llhnoi~
WXCEPT IN ll$. PLAlNTil-'f CASES)

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LAND INVOLVUD.

(e) Attorney's (Finn N:Ultt, Add:r~~~- and T~kphl1t1t Numbt:!if)

BaiT)' S. Fagon (P3427S)

Dib, Fagan and Bra\llt, P.C.

25~92 Woodward Avenue

(248) 54l-6JOO

ltnvnl Oak MI 48067-()<)10

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Case: 2:07-cv-11706
Assigned To: Steeh, George Caram
Referral Judge: Majzoub, Mona K
Filed: 04-17-2007 At 11:58 AM

cmp allen, et al v. sears, roebuck,

IV.

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29

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~AUSE OF ACTION ~riefdescription of oau!lo:

AJEcal to District

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VII. REQUESTED IN COMPLAINT:

Age discrimin1:1tion claim
lit) CHECK II' THIS IS A CLASS ACTION UNDER F KC.P, 23

DEMAND$ to bit'~ dctcrmin~d

VUI. RELATED CASE(S) IF ANY

JUDGE Arthur J, Tarnow

cllECK YES only i .

in complaint

rf JliRY DEMAN I):(

Y,.) [I No

__ ......

\ /

DOCKET NI.IMilER 06-ev-128M

DATI-'.
April 16, 2<HI7

l<ECEIPT# ----~AMOUNT------- Af'PLYJN(; lfl' - - - - - - -

Juoor _ _ _ __

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PURSUANT TO LOCAL RULE 83.11

1.

Is this a case that has been previously dismissed?

If yes, give the following information: Court: ____________________________________

Case No.: --------------~~--~
Judge:-----------------

DYes
0 No

2.

Other than stated above, are there any pending or previously

· discontinued or dismissed companion cases in this or any other court, including state court? (Companion cases are matters in which it appears substantially similar evidence will be offered or the same

il]Yes
0 No

or related parties are present and the cases arise out of the same

transaction or occurrence.)

If yes, give the following information: Court: U.S. Oi~t:rict Co~1rt., 6~~tstem Di~;trict ufMiclligW'I, Soothern Division

Case No.: _o::::6..:·'v:...·l::28::::6:..6------~--~--~-Judge: Arthur J. Tarnow

Notes:

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION GAROLD ALLEN, et al.,

Plaintiffs, vs. SEARS ROEBUCK AND CO., et al.,

Case No. 07-11706 HON. GEORGE CARAM STEEH

Defendants. ___________________________________/

ORDER REGARDING NOTICE AND CONSENT TO JOIN FORMS

This matter has come before the Court on the parties’ competing proposals for

notice and consent to join forms in this conditionally certified collective action alleging

age discrimination under the ADEA. The Court is familiar with the pleadings filed in this

matter and has determined that oral argument will not assist in the resolution of the

issues.

This order will use the section headings of the parties’ proposed notices, and will

address the areas of disagreement.

To: Defendant contends that the notice should only be addressed to former HVAC
Sales Associates who were employed as such on November 1, 2004 and were aged 40 or more on that date. Plaintiffs argue that the addressee group should be broader to include all former HVAC Sales Associates who meet the age requirement of being 40 years old by November 1, 2004. Because the notice defines the class in detail in Section II, the Court agrees that the broader language proposed by plaintiffs is

appropriate. I. Introduction
Defendants propose to add a reference to the Age Discrimination in Employment Act in describing the pending lawsuit. The Court agrees that this is an appropriate reference. II. The Lawsuit
Defendants propose to state that they are “vigorously” contesting the lawsuit. Plaintiffs propose to advise potential opt-ins that defendants deny that any age discrimination occurred and are defending against the claims. Plaintiffs’ proffered language is adequate to inform the opt-ins of defendants’ opposition to the allegations, while not intimidating them from pursuing the matter further.
Defendants propose to include language informing the opt-ins that there is no money available to them now, and no guarantee that there ever will be money available to them. Plaintiffs propose to inform the opt-ins that no determination has been made that Sears engaged in age discrimination, or that anybody is owed compensation, and that the named plaintiffs are continuing to litigate the matter which is pending. One purpose of the notice is to provide enough information for opt-ins to “make informed decisions.” Hoffman-La Roche v. Sperling, 493 U.S. 165, 170 (1989). Plaintiffs’ language is sufficient to inform opt-ins as to the status of the case as unresolved, without discouraging them from participating. The Court approves of plaintiffs’ proposed language on this point.
The transition of Sears HVAC Sales Associates from Sears to SHIP was
2

announced on July 8, 2004. The transition did not begin until November 1, 2004, and was completed by mid-2005. Defendant proposes that the notice should advise potential opt-in plaintiffs that they may be eligible for compensation if they were employed by defendant as HVAC Sales Associates as of November 1, 2004, were at least 40 years old on that date, and quit, retired or were terminated between November 1, 2004 and December 31, 2005. Plaintiff’s proposed notice differs by not requiring the opt-in to be employed as an HVAC Sales Associate on November 1, 2004, and providing that they quit, retired or were terminated between July 8, 2004 and December 31, 2006.
Plaintiffs allege that they were reclassified from employment with Sears to employment with SHIP. Incident to the transition, they allegedly lost valuable benefits and suffered dramatic job changes. If the only complaint the plaintiffs had was the resulting separations that occurred, then they seem to concede that it would be relevant that they be employed on November 1, 2004 in order to allege constructive discharge. The Sixth Circuit has held that where a plaintiff was not demoted, and “enjoyed the same job with the same benefits until the day he quit” there was no constructive discharge. Agnew v. BASF Corp., 286 F.3d 307 (6th Cir. 2002). However, plaintiffs argue that the reclassification, loss of benefits, and job changes were known and certain to occur once they were announced on July 8, 2004. It was the announcement of the changes that allegedly caused some HVAC Sales Associates to leave before they became SHIP employees.
The Court finds that it would be premature to limit the class at the notice stage. The evidence in this case must be developed before the Court can decide if a claim of
3

constructive discharge can be supported after the announcement, but prior to the actual transition. This will undoubtedly be an issue for summary judgment. The Court agrees with plaintiffs that July 8, 2004 is an appropriate starting date for purposes of the notice.
The parties also disagree on the cut-off date for potential opt-ins. The last of the transitions occurred in April of 2005. Defendants propose an ending date of December 31, 2005, while plaintiffs propose December 31, 2006. It strikes the Court that one year is a reasonable amount of time for an employee to assess his or her new job situation. This case is distinguishable from Coffey v. Chattanooga-Hamilton County Hosp. Authority, 1999 WL 824870, *3 (6th Cir. 1999), where the last event that could be considered to lead to a constructive discharge occurred seven months prior to plaintiff’s resignation. In that case, the Sixth Circuit held that a seven-month delay in resigning rebutted any inference that plaintiff “felt compelled to resign. . . and defeats his claim of constructive discharge.” In this case, the changes in employment terms of the HVAC Sales Associates were on-going and permanent. Therefore, April 30, 2006 is an appropriate cut-off date, and shall be used in the notice. III. How this Lawsuit Affects Your Rights
While both versions of the notice inform the opt-ins that if they join the lawsuit they may be required to respond to written requests for information and documents and appear for depositions and trial, defendants propose to add language informing the optins that deposition and trial testimony would be “under oath.” The Court agrees that defendants’ language more clearly explains the obligation of those who opt-in to provide discovery in the lawsuit. Explaining to the opt-ins that their testimony would be “under oath” is not likely to discourage them from participating in the lawsuit, and is therefore
4

approved by the Court. Both versions also inform the opt-ins that there may be costs and fees
associated with participating in the lawsuit which they should discuss with a lawyer. Defendants’ version explains that “if you do join the lawsuit and are unsuccessful on the merits of your claim, you may be responsible for defendants’ costs and/or attorney fees . . .”. The Court approves the following version of the warning regarding costs and fees:
There may be costs and fees associated with participating in the lawsuit which you should discuss with a lawyer prior to joining the lawsuit. The parties agree in advising potential opt-ins that their ability to join the lawsuit is subject to the Court’s determination as to whether their claims are similar to those of the current named plaintiffs. Defendants further propose to add the following: “Your right to participate in this lawsuit may depend upon a later decision of the Court that you and the Named Plaintiffs are, in fact, ‘similarly-situated’ under federal law.” The Court finds that this language is redundant and not necessary to the opt-in’s ability to make an informed decision. At the March 30, 2009 hearing on plaintiffs’ motion for conditional certification, in response to the Court’s inquiry, plaintiffs’ counsel stated that plaintiffs are not advancing individualized age discrimination allegations on behalf of the named plaintiffs, or members of the collective action, in this lawsuit. Defendants object that plaintiffs’ proposed notice does not include language advising potential opt-ins that by joining this lawsuit they are foregoing any individualized age discrimination claims against defendants. At the March hearing, the Court understood plaintiffs’ argument to be that this
5

lawsuit involves only age discrimination related to the transition to SHIP. Thus, the certified class would enjoy commonality of claims. The issue raised in the post-hearing pleadings is whether, by joining the lawsuit, potential plaintiffs would have to give up any other claims of age discrimination they might have against Sears. For example, would a post-transition failure to promote claim be lost by a plaintiff who attempts to join the collective action? The question of whether a particular plaintiff who elects to opt-in to the collective action would retain an individualized claim of age discrimination unrelated to the transition is not before the Court and it would be improvident for the Court to decide that issue at this time. However, the Notice should advise potential opt-ins that they should discuss this issue with an attorney before making their decision to join the lawsuit.
The Notice shall provide as follows: You are not required to join the Lawsuit. If you do not join, your rights are not affected. By participating in this Lawsuit, you will not be advancing any individual age discrimination claims you may have against Sears, Roebuck and Co., SHIP and Sears Holding Corp. You should consult with an attorney to determine whether joining this Lawsuit would preclude you from advancing individual claims of age discrimination in the future. IV. Filing the Consent Form Plaintiffs’ proposed notice includes three options for filing the consent form. Option 1 involves returning the Consent to Join form to class counsel, who will contact the opt-ins and determine if they fit within the definition of the class. Option 2 provides that the opt-ins may represent themselves or obtain their own attorney. Option 3 provides that the prospective opt-in may do nothing and not participate in the lawsuit. Defendants object to the fact that Option 1 provides: “If it is determined that you
6

do not fit within the definition of the class, are not qualified to proceed, or, if the firm is unwilling to proceed on your behalf, you may use Options 2 or 3. Defendants contend that this language is confusing, and appears to require opt-ins to submit their Consent to Join to class counsel (Option 1) before being allowed to represent themselves.
Option 1 begins with the language, “If you wish to retain current class counsel and participate in this age discrimination lawsuit...” Option 2 begins, “If you wish to represent yourself or to obtain your own attorney...” Option 3 begins, “You may do nothing.” It is clear that the prospective opt-in may chose from among the three options, depending on their desire, and need not comply with Option 1 before being permitted to choose Option 2 or 3. However, in order to make sure that there is no confusion, the last sentence of Option 1 shall be amended to read as follows:
If it is determined that you do not fit within the definition of the class, are not qualified to proceed, or, if the firm is unwilling to proceed on your behalf, you may still use Options 2 or 3. The addition of the word “still” makes it clear that Options 2 and 3 continue to be available, even if the prospective opt-in unsuccessfully attempted to use Option 1. Defendants’ proposed language would automatically create an attorney-client relationship with class counsel when an opt-in chooses to proceed with Option 1. However, the plaintiffs in a collective action are not absent class members, such as in a class action, but rather they are active parties. Counsel must assess the opt-ins’ claims before entering into a professional relationship with them. The parties appear to agree that the notice should contain clear deadlines for returning the Consent to Join. The Court approves of the 60 and 90-day time-frames contained in plaintiffs’ proposed notice. When the notice is prepared, it shall include
7

specific dates as deadlines, calculated as proposed in plaintiffs’ notice. The parties disagree on having the opt-in sign, date, list their title at Sears and
SHIP, and provide their dates of employment on the Consent to Join. The Court will require the opt-in to provide all of this information on the Consent to Join. The opt-in will not be required to have their Consent notarized. V. No Retaliation
The Court approves the defendants’ proposed statement that federal law prohibits defendants from retaliating against those who join the lawsuit. VI. Court Endorsement
The Court approves the defendants’ proposed statement that the Court is not endorsing the merits of the lawsuit.
It is so ordered. Dated: June 29, 2009
S/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on
June 29, 2009, by electronic and/or ordinary mail. s/Josephine Chaffee Deputy Clerk
8

 
 2:07-cv-11706-GCS-MKM Doc # 247 Filed 03/10/11 Pg 1 of 1 Pg ID 7036

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION GAROLD ALLEN, et al.,

Plaintiffs, vs. SEARS ROEBUCK AND CO., et al.,

Case No. 07-11706 HON. GEORGE CARAM STEEH

Defendants. ___________________________________/

J U D G M E N T

The above entitled matter has com e before the court on defendants’ motion for

summary judgment, and in accordance with thecourt's order granting that motion entered

on March 10, 2011,

IT IS ORDERED AND ADJUDGED that judgment hereby is GRANTED in favor of

defendants.

DAVID J. WEAVER CLERK OF THE COURT

BY: s/Josephine Chaffee DEPUTY COURT CLERK

Dated: March 10, 2011

 
 803 F.Supp.2d 690 (2011)
Garold ALLEN, et al., Plaintiffs, v.
SEARS ROEBUCK AND CO., et al., Defendants.
Case No. 07-11706.
United States District Court, E.D. Michigan, Southern Division.
March 10, 2011.
692*692 Barry S. Fagan, Darcie R. Brault, Dib, Fagan, Royal Oak, MI, Robert M. Giroux, Jr., Fieger, Fieger, Southfield, MI, for Plaintiffs.
James P. Feeney, Dykema Gossett, Bloomfield Hills, MI, Brian M. Schwartz, Michael A. Alaimo, Richard W. Warren, Miller, Canfield, James F. Hermon, Patrick F. Hickey, Paul A. Wilhelm, Dykema Gossett, Detroit, MI, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC. 207]
GEORGE CARAM STEEH, District Judge.
This matter is before the court on defendants', Sears, Roebuck and Co., Sears Home Improvement Products, Inc. and Sears Holdings Corporation, motion for summary judgment. Oral argument was heard on defendants' motion on November 10, 2010. For the reasons stated below, defendants' motion for summary judgment is granted, and plaintiffs' complaint is dismissed in its entirety.
FACTS
Sears employed 550 HVAC sales associates nationwide. These sales associates worked from their homes on a commission basis. They received "leads" from their home offices and

were reimbursed for business expenses. They received paid holiday, vacation and personal time using their "benefit rate," an hourly amount that changed quarterly dependent upon commissions earned.
Sears acquired other home improvement companies, and combined them into a wholly owned subsidiary, SHIP, in 2001. In 2004, Sears announced to its HVAC sales associates that their unit would be closing and that their employment would be "transitioned" to SHIP. This intra-corporate merger dramatically changed HVAC sales associates' compensation. Approximately 288 hours of paid time off per year were lost and business expenses were no longer reimbursed. As a result of the changes to their pay plan attendant to the transition, many HVAC sales associates terminated their employment with defendants.
The first transitions to SHIP began in November 2004 and the last occurred in April 2005. Plaintiffs were all age 40 and above at the time they terminated their employment, and they each left their employment during the years 2004 through 2006. Before the transition, but after it was announced, 63 Sears HVAC sales associates left. By June 2005, a total of 265 had separated from the company. By August 2006, only 96 sales associates remained in a SHIP HVAC sales associate position.
When plaintiffs filed their complaint, they identified the transition as the policy which caused older workers to leave in disproportionate numbers. Now that discovery is over, plaintiffs have refined their assertions concerning the aspects of the transition that caused so many HVAC sales associates to leave as the elimination 693*693 of paid time off and business expense reimbursements.
Plaintiffs retained a statistical expert, Dr. Nitin Paranjpe, to analyze the transition of Sears HVAC sales associates from Sears to SHIP. Dr. Paranjpe concluded in his report that, statistically, older workers exited at a higher rate than younger workers.
This case was originally filed by seven plaintiffs, and on April 15, 2009 the court granted plaintiffs' motion for conditional certification, authorizing the matter to proceed as a conditionally certified collective action. The court approved a Notice and Consent Form on June 28, 2009, which defined the eligible class of individuals as those who "were employed by Sears, Roebuck and Co. as an HVAC sales associate; were at least 40 years of age on November 1, 2004; and [who] quit, retired, or were terminated between July 8, 2004 and April 30, 2006." Twenty former HVAC sales associates signed and returned consent forms.
Plaintiffs contend that defendants were aware of the age demographic differences between HVAC sales associates and SHIP personnel, and knew that 83% of the HVAC sales

associates were over 40 years old. Defendants were also allegedly aware that a "large retirement wave will occur" due to the fact that a large number of HVAC sales associates were over 55 with more than 20 years of service.
Mark Good, then Executive Vice-President of Sears Home Services, testified that he made the decision to transition the workers form Sears to SHIP. He had managed both the Sears HVAC business unit as well as SHIP, and considered the SHIP business model to be "the best operating model . . . in the country" in terms of selling big ticket in-home improvement products. (Good dep. 96, 186). Defendants identify benefits of the SHIP business model to transitioned employees, including appointment-setting by SHIP, and larger territories. Plaintiffs counter that the Sears' model, where they had the opportunity to call leads, answer preliminary questions, and arrange a sit down meeting, was superior because it gave the customer the opportunity to appreciate their expertise and become comfortable with them. According the plaintiffs, the larger territory actually limited the ability of sales associates to run as many appointments as they could at Sears.
Good did not know the ages of the HVAC and SHIP sales associates at the time he made the decision to merge the units. (Good dep. 102-04). Good also testified that he was not involved in the series of decisions that implemented the transition. For example, the issue of whether or not to offer paid time off was a human resources decision. (Good dep. 127-28). It is defendants' position that there was no decision made, as such, not to offer the newly transitioned sales associates paid time off, or to reimburse their business expenses. Rather, when the Sears sales associates were transitioned from Sears to SHIP, the SHIP polices and procedures, including those regarding compensation, automatically applied to them. (Defendants' Objection to Plaintiffs' Rule 30(b)(6) Deposition Notice, Doc. 98).
The purported intent of the transition was to expand the HVAC business. Good wanted all of the HVAC sales associates to make the transition and succeed as sales associates with SHIP. (Good dep. 184-85). In his view, the more experienced sales associates performed better. (Good dep. 56). To encourage experienced HVAC sales associates to remain with SHIP, Sears ensured that the transitioning sales associates kept their Sears service date, remained in the Sears Pension Plan, and retained the option of retiree health benefits, even though other SHIP employees 694*694 did not have those benefits. (McShane dep. 7; Willms dep. 21-22). The transferred HVAC sales associates were paid pursuant to SHIP's compensation system. They were paid on a commission basis, using the HVAC commission rates plus an additional 1%. (Allen dep. 148). They were also eligible for monthly bonuses based on their sales. The big difference between the two business models is that the SHIP system did not give paid time off or reimburse business expenses.

Sales associates who actually worked at SHIP testified that they worked approximately the same number of hours at both Sears and SHIP, but while they had more face time with customers at Sears, they spent more of their day driving between appointments at SHIP. (Kyte dep. 38; Nikias dep. 32, 41; Wirtz dep. 44-45). The in-home selling process was similar at both entities. According to defendants, the first year following the transition, HVAC sales increased by $100 million over the pre-integration HVAC business. (McShane dep. 180-81). Seventy-seven percent of HVAC sales associates who transitioned to SHIP and stayed a full year, had higher annual earnings after the transition, taking into account paid time off and expense reimbursement earnings during their last year at Sears. (McShane dep. 168; defendants' Ex. 15). Twenty-three percent of the transitioned HVAC sales associates earned less under the SHIP model than they had the previous year at Sears. (Defendants' Ex. 15).
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir.2001). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir.1995).
The standard for determining whether summary judgment is appropriate is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'"Amway Distributors Benefits Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The evidence and all reasonable inferences must be construed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Redding, 241 F.3d at 532 (6th Cir.2001). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir.2001).

If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First 695*695 Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir.2000). Mere allegations or denials in the nonmovant's pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252, 106 S.Ct. 2505. Rather, there must be evidence on which a jury could reasonably find for the nonmovant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
ANALYSIS
I. Disparate Impact Age Discrimination
A. Facially Neutral Employment Practice or Policy
A disparate impact age discrimination claim challenges an employer's decision to classify employees in a way that uniquely adversely affects the older employees' on-the-job status. Age Discrimination in Employment Act "ADEA", 29 U.S.C. § 623(a)(2); Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). A disparate impact claim involves employment practices or policies that are facially neutral, but have a disproportionately adverse effect on protected groups. Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir.2006). Plaintiffs must identify a "specific test, requirement, or practice [or policy] . . . that has an adverse impact on older workers." City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536. Moreover, the policy or practice must be "facially neutral," i.e., not intended to discriminate based on age. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 403 (6th Cir.2008).
Plaintiffs recognize that disparate impact claims are not available to challenge hiring and termination practices, which fall under the province of 29 U.S.C. § 623(a)(1), addressing disparate treatment. For this reason, plaintiffs take pains, both in their pleadings and at oral argument, to stress that this is not a termination or constructive discharge case. Rather, plaintiffs target facially neutral policies, which they contend are responsible for the disparate impact alleged—older employees leaving their employment at higher rates than younger employees.

The facially neutral policies identified by plaintiffs are described as a series of discrete decisions, including the decisions to eliminate paid time off and expense reimbursement, which were aspects of the transition to SHIP. Plaintiffs agree that the transition itself was a temporally limited program, but plaintiffs assert that the decisions of how to implement the transition are the policies and practices that actually caused employees to leave.
Defendants attack the very premise of plaintiffs' argument by pointing out that the policies identified by plaintiffs impacted both younger and older workers in the same manner. All of the HVAC sales associates were transitioned to SHIP, and allof them were subject to the same pay plan that already existed at SHIP. The SHIP pay plan was less favorable than the plan the HVAC sales associates had at Sears with regard to paid time off and expense reimbursement, but, after the transition, the SHIP plan applied to everybody equally. This equal treatment, plaintiffs point out, is the nature of a "facially neutral policy."
In Smith v. City of Jackson the Supreme Court held that the city's decision to adjust pay for a group of employees in order to bring them into line competitively was not a specific test, requirement, or practice.
[P]etitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have 696*696 not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. . . . [I]t is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is "responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." (citation omitted). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could "result in employers being potentially liable for `the myriad of innocent causes that may lead to statistical imbalances. . . .'" (citation omitted).
544 U.S. at 241, 125 S.Ct. 1536.
Plaintiffs in this case have also failed to identify a specific employment practice that is responsible for any observed statistical disparities. Where other plaintiffs have succeeded in making out the first prong of their prima facie case, they have shown a test, policy or practice used to guide employer decisions in selecting employees. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (policy required applicants to pass standardized intelligence test and to have a high school diploma to be hired or to transfer within company);EEOC v. Allstate Ins. Co., 528 F.3d 1042 (8th

Cir.2008), vacated on other grounds("no-rehire" policy restricting rehire of former employeeagents terminated under reorganization plan).
The decision not to protect certain benefits lost during a transition might be considered facially neutral, but is not an employment practice or policy for purposes of the disparate impact analysis. By not identifying a specific "test, requirement, or practice", plaintiffs have failed to satisfy the first prong of a disparate impact claim under 29 U.S.C. § 623(a)(2) and City of Jackson.
B. Statistical Evidence
Disparate impact plaintiffs bear the burden of "offering statistical evidence of a kind and degree sufficient to show that the practice in question" has a disparate impact on older workers. Abbott v. Federal Forge, 912 F.2d 867, 872 (6th Cir. 1990). A "prima facie case of disparate impact requires a showing of adverse impact through `relevant statistical analysis,' and a `complete failure to make any such statistical showing is fatal to [a] claim.'" Adams v. Lucent Technologies, Inc., 284 Fed.Appx. 296, 304 (6th Cir.2008) (affirming summary judgment on disparate impact claim) (citations omitted). Plaintiffs' proposed statistical expert, Dr. Paranjpe, concludes in his report that older HVAC sales associates left Sears at higher rates than younger sales associates, but he does not link the alleged statistical disparity to any specific employment practice. "A prima facie case under the theory of disparate impact discrimination requires a specific, identifiable employment practice or policy that caused a significant disparate impact on employees over 40 years of age.'" Id. at 303. Plaintiffs object that defendants did not provide adequate information in their data to make any conclusions as to causation, but that causation in this case is obvious on its face.
Dr. Paranjpe's conclusion is that after the transition, older HVAC sales associates left Sears at higher rates than younger sales associates. In his deposition, Dr. Paranjpe admits that he did not take retirement eligibility into account. (Paranjpe dep. 162). Nor did he analyze the data for a connection between employees who left and a lack of mileage reimbursement, lack of paid time off, or lack of scheduling freedom. (Paranjpe dep. 163). 697*697 Finally, Dr. Paranjpe admitted that his analysis failed to control for any factors unrelated to age discrimination that could have caused people to leave rather than transition to SHIP. (Paranjpe dep. 164-65).
Dr. Paranjpe explained his statistical analysis as generally observing the end result of a policy change. Such observation will allow him to opine whether there is a disparate impact

in a given case. The lawyers then look at the evidence in the case, along with Dr. Paranjpe's statistical opinion of a disparate impact, and they may be able to draw an inference as to age discrimination. (Paranjpe dep. 160). In other words, Dr. Paranjpe does not look at the facts of a case, only at the resulting changes of employment status.
The most glaring problem with Dr. Paranjpe's report is that the analysis is not relevant to the issue being considered by the court.[1] Dr. Paranjpe was not asked to consider whether the alleged facially neutral policy or practice alleged in this case, specifically the loss of paid time off and expense reimbursement, caused a disproportionate number of HVAC sales associates to terminate their employment rather than transition to SHIP. Plaintiffs have failed to offer statistical evidence sufficient to show that the targeted conduct had a disparate impact on older workers. This failure to support causation with statistics is fatal to plaintiffs' prima facie case of disparate impact age discrimination.
C. Reasonable Factors Other than Age
The ADEA provides that, "it shall not be unlawful for an employer . . . to take action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1). There is evidence in this case that defendants' decisions not to provide HVAC sales associates with paid time off and expense reimbursement following the transition, even if such decisions did constitute a policy or practice, were business decisions based on reasonable factors other than age ("RFOA"). Some of the reasons include the desire to integrate Sears' home improvement business, improve customer service, take advantage of SHIPs' superior marketing, increase sales, and reduce operating costs.
In Allen v. Highlands Hosp., 545 F.3d 387 (6th Cir.2008), the employer had a stated policy of increasing employee turnover to replace higher-paid senior employees. The Sixth Circuit rejected plaintiffs' disparate impact age discrimination claim:
[T]he plaintiffs have at best alleged that [defendant] desired to reduce costs associated with its highly paid workforce, including those costs associated with employees with greater seniority. But the plaintiffs have not established that this corporate desire evolved into an identifiable practice that disproportionately harms workers who are at least 40 years old. Because [plaintiffs] have simply pointed to a generalized policy, as opposed to specific practice, they have therefore failed to raise a genuine question of material fact with respect to their disparate-impact claim.
Id. at 404-05. In this case, plaintiffs themselves allege that the business decisions at issue were aimed at decreasing costs associated with long-tenured employees.

The Supreme Court has clarified that the reasonable factors other than age exemption is an affirmative defense that 698*698 places the burden of persuasion on employers to show that a practice that has a disparate impact on employees who are at least 40 years old is based on reasonable factors other than age. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 128 S.Ct. 2395, 2400-02, 171 L.Ed.2d 283. In the wake of City of Jackson and Meacham, the EEOC published proposed rules on the definition of "reasonable factors other than age." A reasonable factor is "one that an employer exercising reasonable care to avoid limiting the employment opportunities of older person would use."
If one reasonable factor other than age was to reduce operating costs, then the elimination of paid time off and business expense reimbursement would support this goal. This is exactly the allegation made by plaintiffs. In the complaint, plaintiffs allege that the "cost of doing business . . . would be hoisted squarely on the Sales Associates." (Second Amended Complaint, ¶ 56). Opt-in plaintiff David Proctor testified that it was his opinion that the transition was designed to force out the HVAC sales associates who were over the age of 40. (Proctor dep. 46). Opt-in plaintiff Robert Wirtz testified that the transition was designed to force out those sales associates with the costliest benefits. (Wirtz dep. 65).
The evidence in this case supports a finding that the decisions to eliminate paid time off and business expense reimbursement were reasonable factors other than age. As such, these reasonable business decisions provide an affirmative defense to a disparate impact age discrimination claim. Plaintiffs point out that in California, state law requires the reimbursement of business expenses, and in California the turnover rate was dramatically lower. While this evidence lends support to plaintiffs' argument that sales associates terminated their employment over the loss of expense reimbursement, it does not alter the fact that, as a decision based on reasonable factors other than age, the elimination of expense reimbursement and paid time off is not evidence of age discrimination.
D. Conclusion
Plaintiffs have failed to identify a facially neutral practice or policy to support a disparate impact age discrimination claim. In addition, plaintiffs have failed to offer statistical evidence to support their theory that the decision to eliminate expense reimbursement and paid time off had a disparate impact on older workers. Finally, defendants in this case have established that the transition, and the decisions made in implementing the transition, were based on reasonable factors other than age, which is a complete affirmative defense to

plaintiffs' disparate impact claim. For each of these reasons, defendants' motion for summary judgment as to plaintiffs' disparate impact claim is GRANTED.
II. Disparate Treatment Age Discrimination
An intentional age discrimination, disparate treatment claim may be established using either direct evidence of age discrimination or the McDonnell Douglasframework. Mitchell v. Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir.2004). The burden of persuasion remains on the ADEA plaintiff at all times to demonstrate that age was the "but-for" cause of the challenged adverse employment action.Geiger v. Tower Automotive, 579 F.3d 614, 620 (6th Cir.2009) (citing Gross v. FBL Fin. Serv., 557 U.S. 167, 129 S.Ct. 2343, 2345, 174 L.Ed.2d 119 (2009)). An ADEA claim cannot succeed unless the employee's age actually played a role in the employer's decision-making process and had a determinative influence on the outcome. See Gross, 129 S.Ct. at 2350.
699*699 Plaintiffs explain that they did not originally bring a disparate treatment claim because it does not fit the traditional framework as developed in the caselaw. Plaintiffs admit they are not accusing defendants of treating older employees differently than younger employees. Rather, plaintiffs' disparate treatment claim is based on the disparate impact model, with the additional allegation that the adverse impact was intended by defendants. Plaintiffs contend that there is circumstantial evidence that defendants knew older employees would quit due to the loss of benefits attendant to the transition to SHIP. Unfortunately for plaintiffs, there is no precedent to support their "disparate impact plus" theory.
None of the plaintiffs suffered an adverse employment action, such as firing or filing to promote. Freeman v. Potter, 200 Fed.Appx. 439, 442 (6th Cir.2006)(citation omitted). Each plaintiff was offered a sales representative job with SHIP, and each voluntarily quit either before or shortly after the transition. Plaintiffs admit this is not a constructive discharge case. Plaintiffs are unable to establish a prima facie case of age discrimination due to a lack of an adverse employment action. In addition, as discussed above with regard to the reasonable factors other than age, defendants had legitimate non-discriminatory reasons for the transition, as well as for the decisions implementing the transition.
The Sixth Circuit has recognized that cost-saving constitutes a legitimate non-discriminatory reason for certain business decisions undertaken by an employer.Schuch v. Savair, 118 Fed.Appx. 16, 23 (6th Cir.2004). Defendants have identified several reasons for the transition, so plaintiffs must "show that each proffered reason is merely a pretext for illegal

discrimination." Kestner v. Stanton Group, 202 Fed.Appx. 56, 60 (6th Cir.2006). The fact that Sears hired back several of the plaintiffs even after they had resigned, confirms the non-discriminatory nature of its actions. Plaintiffs Robert Wirtz, Charles Nikias and David Proctor were re-hired in 2007 and 2008, when they were older than they were at the time of the initial transition.
CONCLUSION
For the reasons stated in this opinion and order, defendants' motion for summary judgment is GRANTED as to plaintiffs' disparate impact and disparate treatment age discrimination claims.
[1] The court notes that defendants have also filed a motion to exclude the testimony and opinions of Dr. Paranjpe [Doc. 218]. Given the court's opinion granting summary judgment in favor of defendants, by way of separate order the court has denied to motion to exclude as moot.

 
 Case 2:07-cv-11706-GCS-MKM Document 18 Filed 08/20/2007 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GAROLD ALLEN, et al., Plaintiffs,
vs. SEARS ROEBUCK AND CO., et al.,
Defendants. ___________________________________/

Case No. 07-11706 HON. GEORGE CARAM STEEH

ORDER DENYING DEFENDANTS’ MOTION FOR CHANGE OF VENUE AND DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION TO DISMISS Plaintiffs filed this putative class action lawsuit for age discrimination against
defendant Sears and its wholly owned subsidiary, alleging that a decision to transfer employees had an adverse disproportionate effect on those employees age 40 and older in violation of the Age Discrimination in Employment Act (“ADEA”). Defendants have filed two motions, one for change of venue, and the other to dismiss for failure to state a claim.
FACTUAL BACKGROUND Defendant Sears Holdings Corporation (“Sears Holding”) through its predecessor and wholly owned subsidiary, defendant Sears, Roebuck and Co. (“Sears”) offers installed home improvement products and services to the public for purchase, including heating, ventilation and air conditioning (“HVAC”) products and installation services. Sears employed approximately 550 HVAC Sales Associates nationwide. The HVAC Sales Associates worked from their homes on a commission basis, and received leads

Case 2:07-cv-11706-GCS-MKM Document 18 Filed 08/20/2007 Page 2 of 11
from their respective home offices. They were reimbursed for their business expenses, including mobile telephone use and mileage. They received paid holiday, vacation and personal time using a “benefit rate” that was based upon commissions.
Sears began to acquire other home improvement companies and, in 2001, combined some of them into a wholly owned subsidiary, defendant Sears Home Improvement Products (“SHIP”). In 2004, Sears announced to its HVAC Sales Associates that their employment would be “transitioned” to SHIP and they would become employees of SHIP. The HVAC Sales Associates were essentially terminated from Sears and hired by SHIP.
By implementing this intra-corporate merger, the compensation earned by the HVAC Sales Associates was drastically reduced. Business expenses were no longer reimbursed, many hours of paid time off were lost, and work hours were increased. Plaintiffs allege that as a result of the transition to SHIP, many of the HVAC Sales Associates over the age of 40 were terminated, or they terminated their employment with defendants.
The plaintiffs herein have brought this suit on behalf of themselves and the other similarly situated former HVAC Sales Associates, who at the time of their “transition” were age 40 and above and who terminated their employment or were terminated during the years 2004 through 2006.
The decision to transition plaintiffs to SHIP was made in Longwood, Florida, SHIP’s principal place of business, and Hoffman Estates, Illinois, Sears’ and Sears Holding’s principal places of business. The decision was implemented in Longwood, Florida. Defendant’s key witnesses, those involved in making and implementing the
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decision to transition plaintiffs from Sears to SHIP, are located in Florida and Illinois. The majority of the relevant records, documents and information in this action are in SHIP’s possession in the Middle District of Florida.
Of the seven named plaintiffs, only Suzanne J. Novak and David McKillop reside in Michigan. Sylvester DeRosa resides in New York, Donald Murphy in North Carolina, Ronnie Willms in Tennessee, Walter Magness in California, and Garold Allen in Illinois. Of the approximately 550 HVAC Sales Associates who were transitioned from Sears to SHIPS, 18 resided in Michigan just prior to the transition.
LEGAL STANDARD AND ANALYSIS I. Motion for Change of Venue
Defendants move the court to transfer this case to the Middle District of Florida for the convenience of the parties and witnesses. 28 U.S.C. § 1404(a) provides:
For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. “District courts have wide discretion to transfer an action under 28 U.S.C. § 1404(a) in order to prevent waste of time, energy and money, and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Grand Kensington, L.L.C. v. Burger King Corp., 81 F.Supp.2d 834, 836 (E.D. Mich. 2000) (quoting Hedler v. Hitachi Power Tools, USA Ltd., 764 F.Supp. 93, 95-96 (E.D. Mich. 1991)). However, a court “should give deference to a plaintiff’s choice of venue.” Id. (quoting General Motor Corp. v. Ignacio Lopez de Arriortua, 948 F.Supp. 656, 668 (E.D. Mich. 1996)). “When a defendant moves to change the forum, he must overcome the presumption that the plaintiff has chosen the proper forum.” Id. (citation omitted).
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When considering a motion to transfer venue pursuant to 28 U.S.C. § 1404(a), the first prong to be considered by the court is whether venue is appropriate in the court where the action is sought to be transferred. McNic Oil & Gas Co. v. IBEX Resources Co., L.L.C., 23 F.Supp.2d 729, 739 (E.D. Mich. 1998). If answered in the affirmative, then a court should consider the following factors when ruling on a motion under §1404(a): (1) the convenience of the parties; (2) the convenience of the witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems associated with trying the case most expeditiously and inexpensively; and (7) the interest of justice. Helder, 764 F.Supp. at 96.
Here, defendants “bear the burden of demonstrating that, in light of these factors, ‘fairness and practicality strongly favor the forum to which the transfer is sought.’” Thomas v. Home Depot, U.S.A., Inc., 131 F.Supp.2d 934, 936 (E.D. Mich. 2001) (quoting Rowe v. Chrysler Corp., 520 F.Supp. 15, 16 (E.D. Mich. 1981)). Defendants “must make this showing by a preponderance of the evidence.” Id. (citing International Union, U.A.W. v. Aluminum Co. of Am., 875 F.Supp. 430, 433 (N.D. Ohio 1995)).
The court finds that the action could have been brought in the United States District Court for the Middle District of Florida because there is subject matter jurisdiction over the ADEA claim, which raises a federal question. Further, venue and personal jurisdiction are proper in the Middle District of Florida because defendant SHIP has its principal place of business there and defendants otherwise engaged in activities there that gave rise to this lawsuit. LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1303 (6th Cir. 1989).
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1. The nature of the lawsuit In non-class actions, the plaintiffs’ choice of forum is given a fair amount of weight. Defendants contend that in class actions this factor is entitled to less weight. While there is no Sixth Circuit or appellate authority on point, defendants cite to several district court cases for this proposition. Fox v. Massey-Ferguston, 1995 WL 307485, *4 (E.D. Mich. March 14, 1994); International Show Car Ass’n v. ASCAP, 806 F.Supp. 1308, 1310 (E.D. Mich. 1992); Butcher v. Gerber Prods. Co., 1998 WL 437150, * 10 (S.D.N.Y. 1998). Only two of the seven named plaintiffs reside in Michigan and the subject matter of the action has no unique connection to Michigan, as compared to any other state. Although plaintiff’s choice of forum may be entitled to less deference in this case, defendants must still make a strong showing that the following factors favor a transfer to the Middle District of Florida. 2. The convenience of the parties Two of the seven named plaintiffs reside in Michigan, and eighteen of the HVAC Sales Associates resided in Michigan just prior to the transition. Plaintiffs also argue that Michigan is a middle-ground for the named plaintiffs. On the other hand, the putative class of plaintiffs consists of up to 400 former employees located throughout the country. In addition, SHIP’s principal place of business is in the Middle District of Florida, and it employs 1,415 individuals in the state of Florida. This factor slightly favors defendants. 3. The convenience of the witnesses The convenience of the witnesses is a significant factor in passing on a motion to
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transfer under 28 U.S.C. § 1404(a). Defendants’ key witnesses are, for the most part, located in Florida. They include:
(1) Joseph Steenbeke - former Vice President and General Manager of SHIP. Mr. Steenbeke was involved in the decision to integrate the HVAC Sales Associates with SHIP, and he worked in Longwood, Florida at the time the decision was made. Mr. Steenbeke no longer works for defendants, although he resides in Longwood.
(2) James Williams - former Finance Director of SHIP. Mr. Williams was involved in the plan to integrate the former HVAC Sales Associates into SHIP. He worked for SHIP in Longwood, is no longer employed by defendants, and currently resides in Oviedo, Florida.
(3) John Williams - Vice President of Marketing for SHIP. Mr. Williams was involved in the design and implementation of the integration of HVAC Sales Associates into SHIP. He works for SHIP in Longwood and resides in Winter Springs, Florida.
(4) James Brown - Vice President of Sales for SHIP. Mr. Brown was involved in the actual integration of HVAC Sales Associates into SHIP. He works for SHIP in Longwood and resides in Winter Springs, Florida.
The fact that two of defendants’ key witnesses are no longer employed by defendant is defendants’ strongest argument for transferring venue to the Middle District of Florida. Whether these witnesses would travel to Michigan to testify in person, or whether the parties will be forced to take their de bene esse depositions is unknown at this time. The fact of the matter is that any chosen venue will be less convenient for
6

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some witnesses and more convenient for others. 4. Relative means of parties The plaintiffs are, for the most part, retirees without significant economic means.
The defendants are large corporations that can afford to conduct litigation using any of their offices in Michigan.
5. Conclusion Although defendants have made some valid arguments for transferring venue to Florida, they have not shown that fairness and practicality “strongly” favor a transfer of this action over plaintiffs’ chosen forum. Defendants’ motion to transfer venue is DENIED. II. Motion to Dismiss for Failure to State a Claim A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the pleadings. Defendants’ motion questions whether plaintiffs have, under Fed. R. Civ. P. 8(a), made the requisite “showing that the [plaintiffs] [are] entitled to relief.” “A plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a familiar recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964-65 (2007). The Supreme Court in Bell Atlantic Corp. updated the standard for a motion to dismiss this year as follows: “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” A prima facie case under a disparate impact theory is established when: (1) plaintiff identifies a specific employment practice to be challenged; and (2) through relevant statistical analysis proves that the challenged practice has an adverse impact
7

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on a protected group. Johnson v. U.S. Dept. of Health and Human Servs., 30 F.3d 45, 48 (6th Cir. 1994) (citing Scales v. J.C. Bradford & Co., 925 F.2d 901, 907-08 (6th Cir.
1991)). The Supreme Court recognized that a disparate impact claim could be asserted
under the ADEA in Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536 (2005). The
Court noted generally that disparate impact claims “involve employment practices that
are facially neutral in their treatment of different groups but that in fact fall more harshly
on one group than another . . . .” (quotation omitted). The Court recognized that the scope of disparate-impact liability under the ADEA is narrower than under Title VII.1
The Court reiterated its position that a plaintiff must identify a specific employment
practice that is responsible for creating the disparate impact being attacked:
As we held in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’
Id., 125 S.Ct. at 1545 (quotation omitted).
In City of Jackson, the City instituted a pay plan granting raises to all city
employees, the purpose of which was, among other things, to attract and retain qualified
employees and provide incentive or performance increases. The plaintiffs attacked the
1 One reason the scope of disparate-impact liability under ADEA is narrower than under Title VII is the Reasonable Factor Other than Age provision which provides that it shall not be unlawful for an employer to take any action otherwise prohibited where the differentiation is based on reasonable factors other than age discrimination. The second reason is the amendment to Title VII which modifies the Supreme Court’s holding in Wards Cove Packing Co. V. Antonio, 490 U.S. 642 (1989), a case which narrowly construed the employer’s exposure to liability on a disparate-impact theory. Therefore, Ward’s Cove’s interpretation of Title VII’s identical language remains applicable to the ADEA.
8

Case 2:07-cv-11706-GCS-MKM Document 18 Filed 08/20/2007 Page 9 of 11
pay plan as resulting in proportionately greater raises to officers under the age of 40. The Supreme Court affirmed a grant of summary judgment for the defendant, even though discovery was not complete, because plaintiffs had “not identified any specific test, requirement or practice within the pay plan that has an adverse impact on older workers.” Id. The Court went on to find that the pay plan imposed by the City was based on reasonable factors other than age, seniority and position. Accord, White v. American Axle & Manufacturing, 2006 WL 335710, *6 (E.D. Mich. 2006) (“Plaintiff’s complaint merely provides statistics alleging a number of older people who were laid off by AAM and makes no reference to any policy or practice allegedly employed by AAM that led to the disparities.”)
The policy targeted by plaintiffs was the decision to transition the HVAC Sales Associates to SHIP. It is alleged that this policy impacted older workers more harshly, in part, because they had more banked hours to lose. It is not yet clear whether the transitioning of these employees should be viewed as a single, structural decision which would not amount to an “employment practice” for purposes of the first element of plaintiffs’ cause of action, rather than a series of decisions which may satisfy that part of plaintiffs’ burden. As stated, plaintiffs’ claim looks similar to the organizational structuring decision that the court described in Kaukarni v. City University of New York, 2002 WL 1315596 (S.D.N.Y. 2002). In that case, the district court concluded plaintiff failed to identify a specific employment practice giving defendant fair notice of the claim to be defended.
The Court finds that plaintiffs’ statement of the policy in this case satisfies the minimal notice pleading requirements of Fed. R. Civ. P. 8(a)(2), whereby the plaintiffs
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Case 2:07-cv-11706-GCS-MKM Document 18 Filed 08/20/2007 Page 10 of 11
must set forth a short and plain statement of their entitlement to relief, such that defendants will know what they must defend against. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-14 (2002). It remains possible for plaintiffs to advance a set of facts consistent with a finding that the transition plan amounts to an employment policy or practice in relation to the first prong of a disparate impact claim. The Court will permit the case to continue, allowing the particular aspects of the transition plan to be developed during discovery. Depending on how the aspects of the plan unfold, defendants may renew their motion to dismiss at any time, or bring a motion for summary judgment at the conclusion of discovery.
Accordingly, the court finds that plaintiffs have set forth a specific plan or practice, such that defendant has fair notice of what plaintiffs’ claim is and the grounds upon which it rests.
CONCLUSION For the reasons set forth above, defendants’ motion to change venue is DENIED and defendants’ motion to dismiss is DENIED without prejudice.
Dated: August 20, 2007
S/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
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Case 2:07-cv-11706-GCS-MKM Document 18 Filed 08/20/2007 Page 11 of 11
CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on
August 20, 2007, by electronic and/or ordinary mail. s/Josephine Chaffee Deputy Clerk
11

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GAROLD ALLEN, et al., Plaintiffs,
vs. SEARS ROEBUCK AND CO., et al.,
Defendants. ___________________________________/

Case No. 07-11706 HON. GEORGE CARAM STEEH

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ DISPARATE TREATMENT AGE DISCRIMINATION CLAIM AND ALLOWING PLAINTIFF TO AMEND COMPLAINT [23] Plaintiffs filed this putative class action lawsuit for age discrimination against defendant Sears and its wholly owned subsidiary, alleging that a decision to transfer employees had an adverse disproportionate effect on those employees age 40 and older in violation of the Age Discrimination in Employment Act (“ADEA”). Defendants previously filed two motions, one for change of venue, and the other to dismiss for failure to state a claim. Both of these motions were denied by this Court. Now, defendants have filed the present motion to dismiss plaintiffs’ disparate treatment age discrimination claim for failure to state a claim. For the reasons given below, that motion is GRANTED.
FACTUAL BACKGROUND Defendant Sears Holdings Corporation (“Sears Holding”) through its predecessor and wholly owned subsidiary, defendant Sears, Roebuck and Co. (“Sears”) offers installed home improvement products and services to the public for purchase, including

heating, ventilation and air conditioning (“HVAC”) products and installation services. Sears employed approximately 550 HVAC Sales Associates nationwide. The HVAC Sales Associates worked from their homes on a commission basis, and received leads from their respective home offices. They were reimbursed for their business expenses, including mobile telephone use and mileage. They received paid holiday, vacation and personal time using a “benefit rate” that was based upon commissions.
Sears began to acquire other home improvement companies and, in 2001, combined some of them into a wholly owned subsidiary, defendant Sears Home Improvement Products (“SHIP”). In 2004, Sears announced to its HVAC Sales Associates that their employment would be “transitioned” to SHIP and they would become employees of SHIP. The HVAC Sales Associates were essentially terminated from Sears and hired by SHIP.
By implementing this intra-corporate merger, the compensation earned by the HVAC Sales Associates was drastically reduced. Business expenses were no longer reimbursed, many hours of paid time off were lost, and work hours were increased. Plaintiffs allege that as a result of the transition to SHIP, many of the HVAC Sales Associates over the age of 40 were terminated, or they terminated their employment with defendants.
The plaintiffs herein have brought this one-count age discrimination suit on behalf of themselves and the other similarly situated former HVAC Sales Associates, who at the time of their “transition” were age 40 and above and who terminated their employment or were terminated during the years 2004 through 2006.
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LEGAL STANDARD AND ANALYSIS
At the November 5, 2007 scheduling conference in this case, the issue was
raised that plaintiffs would seek discovery regarding a disparate treatment theory of age
discrimination in addition to a disparate impact theory. Defendants believe that plaintiffs
are precluded from conducting any discovery with regard to disparate treatment
because such a claim had not been separately pled in the complaint.
The ADEA violation is contained in the one-count complaint at the following
paragraphs:
74. At the time of the transition to SHIP, Plaintiffs and the class they seek to represent were qualified for protection against age discrimination under ADEA.
75. Defendants violated the ADEA prohibition against age discrimination in “transitioning” the employment of Plaintiffs and the class they seek to represent from Defendant SEARS, ROEBUCK AND CO. to an inferior position with Defendant SHIP, causing a disproportionate number of employees age 40 and above to terminate their employment, or to be terminated.
76. The decision of Defendants to “transition” all HVAC Sales Associates from Defendant SEARS, ROEBUCK AND CO. to Defendant SHIP had the consequence of causing a statistically significant number of employees, age 40 and above, to terminate their employment or be terminated and thus such decision had a disparate impact on employees age 40 and above in violation of the ADEA.
This Court has previously determined that the plaintiffs have stated a claim of
age discrimination that fairly places the defendants on notice of that claim.
Jurisprudence has developed to allow different types of evidence to be used to show
causation, including disparate treatment and disparate impact theories. The disparate
treatment theory is that the employer acted with the intention of discriminating on the
basis of age. The employer’s motivation can be shown by direct evidence of age
3

discrimination or indirect evidence from which age discrimination can be inferred. Mitchell v. Vanderbilt University, 389 F.3d 177 (6th cir. 2004). The disparate impact theory requires the plaintiff to identify a specific employment practice that is responsible for any observed statistical disparities. Smith v. City of Jackson, 544 U.S. 228, 239 (2005).
The courts which have addressed the two theories of age discrimination do discuss them as being two separate claims or theories. See, Smith v. City of Jackson, supra. Therefore, contrary to plaintiffs’ argument, disparate treatment and disparate impact theories of age discrimination must be adequately plead in the complaint.
In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court held that the requirements for establishing a prima facie case do not apply to the pleading standard that plaintiff must satisfy in order to survive a motion to dismiss. The Supreme Court has emphasized that Rule 8(a) “do[es] not require heightened fact pleading of specifics, but only enough facts to state a claim that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Plaintiffs’ complaint alleges a disparate impact theory of age discrimination, but does not contain sufficient allegations that would support a claim of intentional age discrimination via disparate treatment.
For the reasons set forth above, the Court grants defendants’ motion to dismiss for failure to state a claim of disparate treatment age discrimination. However, the Court will permit plaintiffs the opportunity to amend their complaint to allege a disparate treatment theory, providing “the grounds on which the claim rests.” Id. at 1965 n.3.
IT IS HEREBY ORDERED that defendants’ motion to dismiss plaintiffs’ disparate treatment age discrimination claim is GRANTED.
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IT IS HEREBY FURTHER ORDERED that plaintiffs may amend their complaint to allege a claim of disparate treatment age discrimination on or before March 17, 2008. Dated: February 25, 2008
S/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on
February 25, 2008, by electronic and/or ordinary mail. s/Josephine Chaffee Deputy Clerk
5

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GAROLD ALLEN , SYLVESTOR J. DEROSA, WALTER MAGNESS, DAVID MCKILLOP, DONALD MURPHY, SUZANNE J. NOVAK, and RONNIE W ILLMS, on behalf of themselves and those similarly situated ,

Plaintiffs, -vs-
SEARS ROEBUCK AND CO., SEARS HOME IMPROVEMENT PRODUCTS, INC. and SEARS HOLDINGS CORPORATION , jOintly and severally.

Case No. 2:07-cv-11706
Hon. George Caram Steeh Mag . Judge Mona K. Majzoub

Defendants.

Barry S. Fagan (P34275) Darcie R. Brault (P43864) D18 , FAGAN AND BRAULT, P.C. Attorneys for Plaintiffs 25892 Woodward Avenue Royal Oak, MI 48067-0910 (248) 542-6300 dbrault@d ibandfagan.com
bfagan@d ibandfagan.com

Geoffrey Fieger (P30441) Robert M. Giroux, Jr. (P47966) FIEGER FIEGER KENNEY & JOHNSON, P.C. Attorneys for Plaintiffs 19390 W. 10 Mile Road Southfield , MI 48075 (248) 355-5555 r.gi roux@tiegerl aw.com

SECOND AMENDED COMPLAINT AND JURY DEMAND (CLASS ACTION)

I - INTRODUCTION

1. This is a proposed class action to vindicate the rights of former employees

of Defendant SEARS, ROEBUCK AND CO. under the Age Discrimination in

Employment Act, as amended , 28 U.S.C. §621-634 (hereinafter "ADEA").

2. Defendant SEARS HOLDINGS CORPORATION , through its prececessor

and who lly owned subsidiary, Defendant SEARS, ROEBUCK AND CO., offers installed

home improvement products and services to the public for purchase, including heating ,

ventilation and air conditioning ("HVAC") products and installation services. 3. Defendant SEARS, ROEBUCK AND CO. employed approximately five
hundred and fifty HVAC Sales Associates nationwide. HVAC Sales Associates worked from their homes on a commission basis. HVAC Sales Associates received "leads" from their respective home offices. HVAC Sales Associates were reimbursed for their business expenses, including mobile telephone use, mileage, etc. They received paid holiday, vacation and personal time using their "benefrt rate," an hourly amount that changed quarterly dependent upon commissions earned .
4. Defendant SEARS, ROEBUCK AND CO. acquired other home improvement companies and combined some of them, in 2001 , into a wholly owned subsidiary: Defendant SEARS HOME IMPROVEMENT PRODUCTS (hereinafter "Defendant SHIP" or "SHIP").
5. In 2004, Defendant SEARS, ROEBUCK AND CO., announced to its employees who worked as HVAC Sales Associates that their employment wou ld be "transitioned " to SHIP, effective various dates dependent upon the Sales Associate 's region. The Sales Associates were advised that their former department would no longer exist and that they wou ld become employees of Defendant SHIP. By virtue of the "transition" Defendant SEARS, ROEBUCK AND CO. employees were terminated and hirec by Defendant SHIP.
6. Defendants, per the implementation of the merger, dramatically changed HVAC Sales Associates ' compensation. Approximately two hundred and eighty eight hours of paid time off per year was lost and business expenses were no longer to be reimbursed . Moreover, HVAC Sales Associates were required to be available more days and more hours and to travel greater distances for sales calls.
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7. Far greater responsibilities were imposed upon the HVAC Sales Associates, all for less compensation. The benefit of the "transition" ran to SHIP - a wholly owned subsidiary of Defendant SEARS, ROEBUCK AND CO., and now Defendant SEARS HOLDINGS CORPORATION .
8. As a result of the forced transition of HVAC Sales Associates to SHIP, and the dramatic changes that occurred , many HVAC Sales Associates were terminated or terminated their employment with Defendants.
9. The Plaintiffs named herein have brought this suit on behalf of themselves and the other similarly situated former HVAC Sales Associates, who at the time of their separation from employment with Defendants were age 40 and above and who terminated their employment or were terminated during the years 2004 through 2006.
II - JURISDICTION AND VENUE 10. This is a civil action over which original jurisdiction is vested in this Court by 28 U.S.C. §1331 (federal question jurisdiction) as well as the ADEA, as amended , 29 U.S.C. §621-634. 11 . Venue is appropriate in this Court under 28 U.S.C. §1391 as it is brought in a judicial district in which the Defendants may be found at the time the action is commenced . Further, many of the Plaintiffs and class members reside in the State of Michigan, including counties locatee within the Eastern District of Michigan.
III - THE PARTIES Specific Allegations Regarding the Plaintiffs 12. Plaintiff SUSAN J. NOVAK, (date of birth 6/15/48) , is a resident of the State of Michigan who became employed by Defendant SEARS, ROEBUCK AND CO.
3

in 1980. Plaintiff NOVAK was employed in the Metro Detroit region as a HVAC Sales Associate. In late 2004, Plaintiff NOVAK was notified that her region would be "transitioned " to SHIP effective March 1, 2005.
13. As a result of the transition, Plaintiff NOVAK was forced to terminate her employment with Defendants on or about March 7, 2005 and retire.
14. Plaintiff SYLVESTER DEROSA, (date of birth 2/20/50), is a resident of the State of New York who became employed by Defendant SEARS, ROEBUCK AND CO. in 1971 . Plaintiff DEROSA was employed in the Western Suffolk County, Long Island region as a HVAC Sales Associate. In late 2004, Plaintiff DEROSA was notified that his region would be "transitioned " to SHIP effective April 16, 2005.
15. As a result of the transition, Plaintiff DEROSA was forced to terminate his employment with Defendants on or about April 15, 2005 and retire.
16. Plaintiff DAVID MCKILLOP, (date of birth 5/15/44), is a resident of the State of Michigan who became employed by Defendant SEARS, ROEBUCK AND CO. in 1964. Plaintiff MCKILLOP was employed in the Midwest Region, including the DetroiUAnn Arbor area, as a HVAC Sales Associate. In late 2004, Plaintiff MCKILLOP was notified that his region would be "transitioned " to SHIP effective March 1, 2005.
17. As a result of the transition, Plaintiff MCKILLOP was forced to terminate his employment with Defendants on or about March 7, 2005 and retire.
18. Plaintiff DONALD MURPHY, (date of birth 8/5/47), is a resident of the State of North Carolina who became employed by Defendant SEARS, ROEBUCK AND CO. in 1976. Plaintiff MURPHY was employed in the Washington D.C. Metro region , including southern Maryland and northern Virginia as a HVAC Sales Associate. In late 2004, Plaintiff MURPHY was notified that his region would be "transitioned " to SHIP
4

effective February 1, 2005. 19. As a result of the transition, Plaintiff MURPHY was forced to terminate his
employment with Defendants on or about April 19, 2005 and retire. 20. Plaintiff, WALTER F. MAGNESS, (date of birth 12/24/43), is a resident of
the State of California who became employed by Defendant SEARS, ROEBUCK AND CO. in October 1970. Plaintiff MAGNESS was employed as an HVAC Sales Associate. In September 2004, Plaintiff was notified that his department would be "transitioned " to SHIP .
21 . As a result of the transrtion, Plaintiff MAGNESS was forced to terminate his employment with Defendants on or about January 23, 2005 and retire.
22. Plaintiff, RONNIE WILLMS, (date of birth 9/12/53) , is a resident of the State of Tennessee who became employed by Defendant SEARS, ROEBUCK AND CO. in February 1990. Plaintiff WILLMS was employed as an HVAC Sales Associate. In late 2004, Plaintiff was notified that his department would be "transitioned " to SHIP.
23. Plaintiff WILLMS "transitioned " to SHIP on or about January 26, 2005. 24. As a result of the transition, Plaintiff WILLMS was forced to terminate his employment with Defendants on April 5, 2005. 25. Plaintiff, GAROLD ALLEN , (date of birth 2/27/57), is a resident of the State of Illinois who became employed by Defendant SEARS, ROEBUCK AND CO. on March 30, 1974. Plaintiff ALLEN was employed as an HVAC Sales Associate in the MidwesUHVAC Central Region. On November 1, 2004, Plaintiff and the other Sales Associates in his region were "transitioned" to SHIP. 26. Plaintiff ALLEN was subsequently terminated on August 10, 2005. 27. Plaintiffs filed timely complaints with the Equal Employment Opportunity
5

Commission alleging violation of the ADEA. 28. Plaintiffs ALLEN , DEROSA, MCKILLOP, MURPHY, NOVAK and WILLMS
were sent Right to Sue letters on January 18, 2007. 29. Plaintiff MAGNESS was sent a Right to Sue letter on April 9, 2007. Allegations Regarding the Defendants 30. Defendant SEARS, ROEBUCK AND CO. is incorporated in the State of
New York and conducts business in each of the Unrted States, including Michigan. 31 . Defendant SEARS HOLDINGS CORPORATION is a publicly traded
Delaware corporation doing business throughout the United States, including the State of Michigan.
32. Defendant SHIP is a Pennsylvania corporation doing business throughout the United States, including Michigan.
IV - FACTUAL ALLEGATIONS 33. The Plaintiffs and similarly situated HVAC Sales Associates labored for the benefit of Defendant SEARS, ROEBUCK AND CO. for decades, building a substantial HVAC product and installation business. 34. As HVAC Sales Associates, the Plaintiffs and those similarly situated , worked from their homes selling HVAC procucts and installation services. 35. HVAC Sales Associates were expected to work a forty-hour workweek. 36. HVAC Sales Associates were paid on a commission-only basis, with the amount of commission tied to the product sold . 37. HVAC Sales Associates also received , as part of their compensation, paid time off: vacation (up to five weeks), personal days and paid holidays. Because there was no set hourly rate of pay for HVAC Sales Associates, their paid time off was
6

calculated by an average of their commissions for the previous quarter, known as the "benefit rate."
38. HVAC Sales Associates were also eligible for sales promotions, including bonuses and prizes.
39. HVAC Sales Associates were provided benefits including medical , dental , disability and life insurance, and stock options.
40. HVAC Sales Associates were reimbursed the amounts they expended on behalf of their employer, including mileage, mobile telephone calls, postage, copies, etc.
41 . Each HVAC Sales Associate was assigned a territory which was shared with a few other HVAC Sales Associates.
42. HVAC Sales Associates were encouraged to self-generate sales leads and were rewarded for doing so by way of increased commissions.
43. HVAC Sales Associates were also provided leads based upon equitable distribution within the assigned territories.
44. The HVAC Sales Associates followed the sale from start to finish : receiving the sales call , scheduling the appointment, writing the estimate, procuring contractors, obtaining credit approval , etc., culminating in a satisfied customer.
45. The HVAC Sales Associates were trained to be "counselor" sales associates, working with the customers to fulfill their HVAC needs, often having multiple customer contacts prior to obtaining a sale. Consequently, the cancellation rate was extremely low.
46. The flexibility of the HVAC Sales Associate position attracted those with exceptional sales skills who excelled in an independent role. Well-matched employees continued in the position for decades.
7

47. Defendant SEARS, ROEBUCK AND CO. acquired various home improvement companies specializing in window installation, vinyl siding , kitchen remodels , etc. These companies were combined , in 2001 , into a single corporation: Defendant SHIP, a who lly owned subsidiary of Defendant SEARS, ROEBUCK and CO.
48. In late 2004, only days before the very first transition was to take place, Defendant SEARS, ROEBUCK AND CO. announced that the HVAC Sales Associates wou ld be "transitioned " to Defendant SHIP.
49. Essentially, this meant that each HVAC Sales Associate wou ld be terminated from employment by Defendant SEARS, ROEBUCK AND CO. and hirec by Defendant SHIP.
50. Defendant SEARS, ROEBUCK AND CO. would no longer employ HVAC Sales Associates.
51 . There were stark differences in the HVAC Sales Associate 's employment by Defendant SEARS, ROEBUCK AND CO. when compared to the SHIP positions.
52. SHIP Sales Associates were expected to be available for work seventytwo hours each week.
53. While SHIP Sales Associates are paid on a commission only basis, the commission amounts per product were to be controlled by Defendant SHIP and differed from the commissions established by Defendant SEARS, ROEBUCK AND CO.
54. Because Defendant SHIP priced many of the products higher, the ability to sell them was reduced and , therefore, the abilrty to earn the commissions was reduced .
55. Defendant SHIP wou ld not provide any paid time off to former HVAC Sales Associates: no vacation, no personal days, no holidays.
56. The cost of doing business in terms of expenses, e.g. mileage, postage,
8

telephone, etc., upon transition, would be hoisted squarely upon the Sales Associates, who would no longer be reimbursed for such expenses.
57. The sales territories to which the Sales Associates would be assigned at Defendant SHIP were dramatically larger compared to those with Defendant SEARS, ROEBUCK AND CO., (approximately five times larger) increasing the amount of travel required and thereby increasing un-reimbursed business expenses, decreasing the potential number of appointments an associate could complete in a day and thereby decreasing the number of potential sales.
58. Sales appointments would be made exclusively by Defendant SHIP at the discretion of its managers.
59. The Defendant SHIP sales model is very different - focusing upon high pressure sales tactics, including a "one call close" rule . Sales Associates are required to make the sale on the first call to the customer or receive a substantially reduced commission or none at all.
60. These high-pressure sales tactics result in a higher average cancellation rate with Defendant SHIP.
61 . As a result of the "transition," many HVAC Sales Associates, age 40 and above, with long tenure within the company were forced to terminate their employment with Defendants or were terminated .
v - CLASS ACTION ALLEGATIONS
62. Plaintiffs bring this class action on beha~ of themselves and other similarly situated persons who have been similarly harmed by Defendants in the matter described herein.
63. Specifically, Plaintiffs bring this action as a class action on behalf of all 9

former HVAC Sales Associates who were age 40 and above at the time of the "transition" to SHIP and terminated their employment or were terminated between 2004 and 2006 as a result of the transition to SHIP.
64. Upon information and belief, the number of members of the Plaintiffs' class exceed 200 and is so numerous that individual joinder into a single action is impracticable.
65. There are questions of law and fact that are common to all class members. The central questions of law and fact involved in this action are of a common and general interest.
66. Common, legal , and factual issues predominate over any questions affecting only individual members of the class.
67. The claims of the named representative Plaintiffs are typical of the claims of all class members because: (a) they were identically situated as HVAC Associates, (b) they all received the same compensation package as HVAC Associates, (c) they all were similarly situated with respect to the terms and conditions of their employment as HVAC Associates, (d) they were all terminated by Defendant SEARS, ROEBUCK AND CO. and were "transitioned " to SHIP, (e) they terminated their employment or were terminated at or after the time of the "transition" from Defendants for the reasons set forth herein.
68. The class representatives have an incentive and are committed to vigorously prosecuting this action because they have actually suffered losses as a result of Defendants' actions.
69. Plaintiffs have retained qualified counsel to represent them in this matter. 70. A class action is the only realistic method available for the fair and efficient
10

adjudication of this controversy. Were each individual required to bring a separate lawsuit, the resulting multiplicity of proceecings wou ld cause undue hardship and expense with litigants and the Court. The prosecution of separate actions wou ld also create the risk of inconsistent rulings, which may be dispositive of the interests of class members, who are not parties to the adjudication andlor may substantially impede the class members' ability to protect their interest, and therefore wou ld be contrary to the interest of justice and equity.
71 . This matter should also proceed as a class action because Defendants' acts andlor omissions apply generally to members of the class warranting equitable relief.
Count I Age Discrimination in Emplovment Act Violation (Disparate Impact)
(Class Representatives and Class against Defendants) 72. Plaintiffs incorporate paragraphs 1 through 71 above as if specifically repeated herein. 73. This count is brought on behalf of Plaintiffs and the class they seek to represent. 74. At the time of the transition to SHIP, Plaintiffs and the class they seek to represent were qualified for protection against age discrimination under ADEA. 75. Defendants violated the ADEA prohibition against age discrimination in "transitioning " the employment of Plaintiffs and the class they seek to represent from Defendant SEARS, ROEBUCK AND CO. to an inferior position with Defendant SHIP, causing a disproportionate number of employees age 40 and above to terminate their employment, or to be terminated . 76. The decision of Defendants to "transition" all HVAC Sales Associates from
11

Defendant SEARS, ROEBUCK AND CO. to Defendant SHIP had the consequence of causing a statistically significant number of employees, age 40 and above, to terminate their employment or be terminated and thus such decision had a disparate impact on employees age 40 and above in violation of the ADEA.
77. As a direct and proximate result of Defendants' violation of the ADEA, Plaintiffs and members of the proposed class have experienced economic harm, including loss of back and front pay and other employee benefits.
78. By reason of the discrimination suffered , Plaintiffs and the members of the proposec class are entitled to all equitable remedies available under the ADEA.
79. Attorneys ' fees should be awarded under the ADEA.
Count 2 Age Discrimination in Emplovment Act Violation (Disparate Treatment)
(Class Representatives and Class against Defendants) 80. Plaintiffs incorporate paragraphs 1 through 79 above as if specifically repeated herein. 81 . This count is brought on behalf of Plaintiffs and the class they seek to represent. 82. Upon information and belief Defendants intended to dramatically reduce their workforce by implementing the "transition" of HVAC Sales Associates to SHIP. 83. Upon information and belief, Defendant intended the consequent reduction in force to be substantially born by its older workers. 84. Upon information and belief Defendants violation of the ADEA was knowing , willing , voluntary or reckless and not accidental , mistaken or inadvertent. 85. As a direct and proximate result of Defendants' violation of the ADEA, Plaintiffs and members of the proposed class have experienced economic harm,
12

including loss of back and front pay and other employee benefits. 86. By reason of the discrimination suffered , Plaintiffs and the members of the
proposec class are entitled to all ecuitable remedies available under the ADEA. 87. Attorneys ' fees should be awarded under the ADEA. 88. Liquidated damages should be awarded under the ADEA.
VI- PRAYER FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and the class members whom they seek to represent, request the following relief:
(a) Acceptance of jurisdiction of this cause; (b) Certification of the case as a class action on behalf of the proposed
Plaintiff class, and designation of the Plaintiffs as representatives of the class and their counsel of record as class counsel ; (c) Declare and adjudge that Defendants have violated Plaintiffs rights under the ADEA; (d) An injuction against Defendants from engaging in any further unlawful practices, policies, customs, usages, or actions that have a disparate impact upon employees protected under the ADEA; (e) An award of back pay, front pay, the value of lost benefits and other equrtable relief for the Plaintiffs and the class they seek to represent; (f) An award of liquidated damages under the ADEA; (g) An award of litigation costs and expenses, including reasonable attorney fees to the Plaintiffs and class members; (h) Pre-judgment and post-judgment interest; and,
13

(i) Such other and further relief as this Court may deem just and proper.

018 , FAGAN AND BRAULT, P.C.

FIEGER FIEGER KENNEY JOHNSON & GIROUX, PC

By: lsi Barry S. Fagan Barry S. Fagan (P34275) Darcie R. Brault (P43864) Attorney for Plaintiffs 25892 Woodward Avenue Royal Oak, MI 48067-0910

By: lsi Robert M. Giroux, Jr., wi consent Geoffrey Fieger (P30441) Robert M. Giroux, Jr. (P47966) Attorneys for Plaintiffs 19390 W . 10 Mile Road Southfield , MI 48075

Dated : March 11 , 2008

PLAINTIFFS' DEMAND FOR JURY TRIAL

NOW COME the above named Plaintiffs, by and through their attorneys, 018 ,

FAGAN AND BRAULT, P.C ., and hereby demand trial by jury on the above matter.

Respectfully submitted ,

018 , FAGAN AND BRAULT, P.C.

FIEGER FIEGER KENNEY JOHNSON & GIROUX, PC

By: lsi Barry S. Fagan Barry S. Fagan (P34275) Darcie R. Brault (P43864) Attorney for Plaintiffs 25892 Woodward Avenue Royal Oak, MI 48067-0910
Dated : March 11 , 2008

By: lsi Robert M. Giroux, Jr., wi consent Geoffrey Fieger (P30441) Robert M. Giroux, Jr. (P47966) Attorneys for Plaintiffs 19390 W. 10 Mile Road Southfield , MI 48075

14

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GAROLD ALLEN , SYLVESTOR J. DEROSA, WALTER MAGNESS, DAVID MCKILLOP, DONALD MURPHY, SUZANNE J. NOVAK, and RONNIE WILLMS, on behalf of themselves and those similarly situated ,

Plaintiffs, -vs-
SEARS ROEBUCK AND CO., SEARS HOME IMPROVEMENT PRODUCTS, INC. and SEARS HOLDINGS CORPORATION , jOintly and severally.

Case No. 2:07-cv-11706
Hon. George Caram Steeh Mag . Judge Mona K. Majzoub

Defendants.

Barry S. Fagan (P34275) Darcie R. Brault (P43864) D18 , F AGAN AND BRAULT, P.C. Attorneys for Plaintiffs 25892 Woodward Avenue Royal Oak, MI 48067-0910 (248) 542-6300 dbrault@d ibandfagan.com
bfagan@d ibandfagan.com

Geoffrey Fieger (P30441) Robert M. Giroux, Jr. (P47966) FIE GER FIEGER KENNEY & JOHNSON , P.C. Attorneys for Plaintiffs 19390 W. 10 Mile Road Southfield , MI 48075 (248) 355-5555 r.gi roux@tiegerl aw.com

PROOF OF SERVICE

I hereby certify that on March 11 , 2008, I electronically filed :

SECOND AMENDED COMPLAINT AND JURY DEMAND (CLASS ACTION)

with the Clerk of the Court using the ECF system which will send notification of such

filing to the following :

• Michael A, Alaimo alaimo@millercanfield.com,schneider@millercanfield.com

• Robert M, Giroux, lr s.stipanovich@fiegerlaw.com

• Richard W. Warren warren@millercanfield.com,barnesm@millercanfield.com

and I hereby certify that I have mailed by United States Postal Service the papers to the following non-ECF participants: _(none)_.
Respectfully submitted , 0 18, F AGAN AND BRAULT, P.C.

Dated : March 11 , 2008

By: lsi Darcie R. Brault
Darcie R. Brault (P43864) Attorney for Plaintiffs 25892 Woodward Avenue Royal Oak, MI 48067-0910 (248) 542-6300 dbrault@dibandfagan .com

2

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION GAROLD ALLEN, et al.,

Plaintiffs, vs. SEARS ROEBUCK AND CO., et al.,

Case No. 07-11706 HON. GEORGE CARAM STEEH

Defendants. ___________________________________/

ORDER GRANTING PLAINTIFFS’ MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION [DOC. 84]

This matter has come before the court on plaintiffs motion to conditionally certify

a collective action under the ADEA. The court heard oral argument by the parties on

March 30, 2009. Now, therefore, for the reasons stated on the record,

IT IS HEREBY ORDERED that plaintiffs’ motion to conditionally certify a

collective action is GRANTED. The parties are given 20 days to stipulate to an opt-in

notice, otherwise they may submit competing notices, with argument in support, for the

Court to resolve.

It is so ordered.

Dated: April 15, 2009

S/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on April 15, 2009, by electronic and/or ordinary mail.
s/Josephine Chaffee Deputy Clerk

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GAROLD ALLEN, et al., Plaintiffs,
vs. SEARS ROEBUCK AND CO., et al.,
Defendants. ___________________________________/

Case No. 07-11706 HON. GEORGE CARAM STEEH

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [DOC. 150] Plaintiffs filed this putative collective action lawsuit for age discrimination against defendant Sears and its wholly owned subsidiary, alleging that a decision to transfer employees had an adverse disproportionate effect on those employees age 40 and older in violation of the Age Discrimination in Employment Act (“ADEA”). Defendants argue that the claims of former sales associates who are not named plaintiffs must be dismissed because they are untimely. At the hearing on the motion, defendants withdrew their argument that plaintiffs’ disparate impact age discrimination claim must be dismissed because plaintiffs’ EEOC charges allege only disparate treatment. For the reasons given below, defendants’ motion is DENIED.
FACTUAL BACKGROUND Plaintiffs are former Sears Roebuck and Co. (“Sears”) employees who sold heating, ventilation and air conditioning (“HVAC”) products from their homes for commissions and other benefits. In late 2004, Sears reclassified their HVAC sales associates, transitioning them to a wholly owned Sears subsidiary, Sears Home

Improvement Products, Inc. (“SHIP”). Incident to the transition, there were job changes including loss of paid time off, loss of expense reimbursement, and changes in job responsibilities. The reclassification led to many employees deciding to separate their employment. Plaintiffs allege that the transitioned HVAC sales associates were disproportionately over the age of forty, and each of the named class representatives brought EEOC charges alleging age discrimination.
On January 18, 2007, Right to Sue letters were issued, giving the plaintiffs 90 days within which to file an ADEA lawsuit. On March 17, 2007, the named plaintiffs filed their collective action ADEA lawsuit.
LEGAL STANDARD AND ANALYSIS An employee must file a charge of discrimination with the EEOC before pursuing an ADEA lawsuit in federal court. 29 U.S.C. § 626(d)(1). An employee must file such a charge with the EEOC within 180 or 300 days of the alleged unlawful practice, depending on whether the employee lives in a state having a law prohibiting age discrimination. 29 U.S.C. § 626(d)(1)(A)-(B); 29 U.S.C. § 633(b). Once the EEOC issues a Right to Sue letter, the employee wishing to file an ADEA lawsuit in federal court must do so within 90 days. 29 U.S.C. § 626(e). A prospective unnamed plaintiff must give his written consent in order to join a collective ADEA action. 29 U.S.C. § 216(b). Defendants cite to the federal Portal-to-Portal Act, which provides that a prospective plaintiff wishing to join a collective action alleging violations of applicable federal labor laws does not commence an action until he provides written consent to join
2

the action. 29 U.S.C. § 256. Section 7 of the Portal-to-Portal Act specifically provides
that:
In determining when an action is commenced for the purposes of section 255 of this title, an action . . . shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action instituted . . . it shall be considered to be commenced in the case, of any individual claimant (a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or (b) if such written consent was not so filed or if his name did not so appear - on the subsequent date on which such written consent is filed in the court in which the action was commenced.
The Eighth Circuit applied the limitations period of the Portal-to-Portal Act to the ADEA
in O’Connell v. Champion International Corp., 812 F.2d 393 (8th Cir. 1987). Defendants
contend that under the Portal-to-Portal Act, the unnamed plaintiffs in this case would be
time barred from opting in because their written consent was not timely filed.
The Portal-to-Portal Act underwent significant changes in 1991, including the
repeal of Section 6, but not of Section 7. In 1994, the Third Circuit decided the seminal
“single filing” case in Sperling v. Hoffmann-La Roche, Inc., 24 F.3d 463 (3rd Cir. 1994).
In that case, over 400 people filed consents to join Sperling’s opt-in class within the
limitations period, but 102 did not file consents until after the expiration of the statute of
limitations. Sperling contended the 102 consents were timely filed because the named
plaintiffs’ filing of a complaint in a representative action under ADEA legally tolls the
statute of limitations. The district court agreed and granted Sperling’s motion to toll the
statute for the 102 people whose individual actions would have otherwise been barred.
The Court of Appeals held that the single filing rule tolls the limitations period for opt-in
3

plaintiffs, so long as the representative nature of the action is clear on the face of the
complaint.
Under ADEA we believe Congress did not intent to restrict opt-in classes to employees who file consents within the applicable statute of limitations that section 16(b) of FLSA and section 6 of the Portal-to-Portal Act set for individual age discrimination claims. To the contrary, we believe that Congress expressed its intent to permit additional members to opt-in and join the class by filing consents after the statute of limitations on their individual actions would have run when it omitted section 7 of the Portalto-Portal Act from those portions of FLSA that it incorporated into ADEA’s original statute of limitations. We therefore hold qualified plaintiffs may join a representative action for age discrimination after the time period for their individual actions has lapsed when the representative plaintiffs have filed a complaint within the statute of limitations set forth in section 6 of the Portal-to-Portal Act, provided, however, that the representatives have framed their complaint in a manner that puts the employer on notice that it will be called upon to defend an opt-in class action.
Sperling, 24 F.3d at 465.
This judicial exception to the charge filing rule permits an alleged victim of
discrimination who did not timely file a charge with the EEOC, but who falls within the
class of people represented by a plaintiff who did timely file, to “piggy back” on his
charge. This single filing rule has been adopted in the Sixth Circuit. EEOC v. Wilson
Metal Casket Co., 24 F.3d 836, 840 (6th Cir. 1994)(“The rationale behind the ‘single
filing rule’ is the belief that it would be wasteful for numerous employees with the same
grievances to file identical complaints with the EEOC.”). The single filing rule has
specifically been applied to ADEA cases in the Sixth Circuit. Howlett v. Holiday Inns, 49
F.3d 189, 194 (6th Cir. 1995).
The claims filed in this case were sufficient to notify the employer that the
charging parties were asserting class-wide claims. Under the single filing rule of
Sperling, as adopted in this Circuit, the unnamed plaintiffs who filed their opt-in
4

consents are permitted to “piggy back” onto the timely filed claims of the original plaintiffs. The court does not agree with defendants’ argument that it should borrow a limitations period from an analogous statute, such as the Eliott-Larsen Civil Rights Act. Once the single filing rule is determined to be sufficient, as it has been in this case, it tolls the limitations period for opt-in plaintiffs, so long as the representative nature of the action is clear on the face of the complaint. Sperling v. Hoffman-La Roche, Inc., 24 F.3d 463, 467-68 (3rd Cir. 1994).
CONCLUSION For the reasons stated in this opinion and order, defendants’ motion to dismiss is DENIED in its entirety.
Dated: January 20, 2010
S/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on
January 20, 2010, by electronic and/or ordinary mail. s/Josephine Chaffee Deputy Clerk
5

 
 Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 1 of 29
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:07−cv−11706−GCS−MKM

CLOSED

Allen et al v. Sears, Roebuck and Company et al Assigned to: District Judge George Caram Steeh Referred to: Magistrate Judge Mona K. Majzoub
Magistrate Judge Steven D Pepe (Settlement) Cause: No cause code entered
Plaintiff

Date Filed: 04/17/2007 Date Terminated: 03/10/2011 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Garold Allen

represented by Barry S. Fagan Dib, Fagan, 25892 Woodward Avenue Royal Oak, MI 48067−0910 248−542−6300 Email: bfagan@dibandfagan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Giroux , Jr. Fieger, Fieger, 19390 W. Ten Mile Road Southfield, MI 48075−2463 248−355−5555 Email: rgiroux@fiegerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darcie R. Brault Klimist, McKnight, Sale, McClow &Canzano 400 Galleria Officentre, #117 Southfield, MI 48034 (248) 354−9650 Fax: (248) 354−9656 Email: dbrault@michworklaw.com ATTORNEY TO BE NOTICED

Plaintiff Sylvestor J. Derosa

represented by Barry S. Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Giroux , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darcie R. Brault (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Walter Magness

represented by Barry S. Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Giroux , Jr.

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 2 of 29

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darcie R. Brault (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David McKillop

represented by Barry S. Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Giroux , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darcie R. Brault (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Suzanne J. Novak

represented by Barry S. Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Giroux , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darcie R. Brault (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ronnie Willms

represented by Barry S. Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Giroux , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darcie R. Brault (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Donald Murphy

represented by Barry S. Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Giroux , Jr. (See above for address) LEAD ATTORNEY

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 3 of 29
ATTORNEY TO BE NOTICED
Darcie R. Brault (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Sears, Roebuck and Company

represented by Brian M. Schwartz Miller, Canfield, 150 W. Jefferson Avenue Suite 2500 Detroit, MI 48226−4415 313−496−7551 Fax: 313−496−8451 Email: schwartzb@millercanfield.com ATTORNEY TO BE NOTICED
James P. Feeney Dykema Gossett 39577 Woodward Avenue Suite 300 Bloomfield Hills, MI 48304−2820 248−203−0700 Email: jfeeney@dykema.com ATTORNEY TO BE NOTICED
James F. Hermon Dykema Gossett 400 Renaissance Center Detroit, MI 48243 313−568−6800 Email: jhermon@dykema.com ATTORNEY TO BE NOTICED
Michael A. Alaimo Miller, Canfield, 150 W. Jefferson Avenue Suite 2500 Detroit, MI 48226−4415 313−963−6420 Email: alaimo@millercanfield.com ATTORNEY TO BE NOTICED
Patrick F. Hickey Dykema Gossett (Detroit) 400 Renaissance Center Detroit, MI 48243−1668 313−568−6800 Email: phickey@dykema.com ATTORNEY TO BE NOTICED
Paul A. Wilhelm Dykema Gossett 400 Renaissance Center Detroit, MI 48243 313−568−6966 Email: pwilhelm@dykema.com ATTORNEY TO BE NOTICED
Richard W. Warren Miller, Canfield, 150 W. Jefferson Avenue

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 4 of 29

Suite 2500 Detroit, MI 48226−4415 313−963−6420 Email: warren@millercanfield.com ATTORNEY TO BE NOTICED

Defendant
Sears Home Improvement Products, Incorporated

represented by Brian M. Schwartz (See above for address) ATTORNEY TO BE NOTICED

James P. Feeney (See above for address) ATTORNEY TO BE NOTICED

James F. Hermon (See above for address) ATTORNEY TO BE NOTICED

Michael A. Alaimo (See above for address) ATTORNEY TO BE NOTICED

Patrick F. Hickey (See above for address) ATTORNEY TO BE NOTICED

Paul A. Wilhelm (See above for address) ATTORNEY TO BE NOTICED

Richard W. Warren (See above for address) ATTORNEY TO BE NOTICED

Defendant Sears Holdings Corporation

represented by Brian M. Schwartz (See above for address) ATTORNEY TO BE NOTICED

James P. Feeney (See above for address) ATTORNEY TO BE NOTICED

James F. Hermon (See above for address) ATTORNEY TO BE NOTICED

Michael A. Alaimo (See above for address) ATTORNEY TO BE NOTICED

Patrick F. Hickey (See above for address) ATTORNEY TO BE NOTICED

Paul A. Wilhelm (See above for address) ATTORNEY TO BE NOTICED

Richard W. Warren (See above for address) ATTORNEY TO BE NOTICED

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 5 of 29

Date Filed 04/17/2007 04/18/2007 05/01/2007 05/01/2007 05/01/2007 05/01/2007 05/09/2007 06/22/2007
06/22/2007
06/29/2007 07/05/2007 07/05/2007 07/26/2007 07/27/2007

# Docket Text
1 COMPLAINT filed by Suzanne J. Novak, Ronnie Willms, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop against Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation, Receipt No: 39130−DT − Fee: $ 350. (SMar) (Entered: 04/17/2007)
2 AMENDED COMPLAINT and Jury Demand filed by all plaintiffs against all defendants. (Fagan, Barry) (Entered: 04/18/2007)
3 [FILING ERROR − CERTIFICATE OF SERVICE] CERTIFICATE of Service/Summons Returned Executed. Sears Holdings Corporation served on 4/19/2007, answer due 5/9/2007. (Fagan, Barry) Modified on 5/1/2007 (Martin, S.). (Entered: 05/01/2007)
4 [FILING ERROR − CERTIFICATE OF SERVICE] CERTIFICATE of Service/Summons Returned Executed. Sears, Roebuck and Company served on 4/19/2007, answer due 5/9/2007. (Fagan, Barry) Modified on 5/1/2007 (Martin, S.). (Entered: 05/01/2007)
5 [FILING ERROR − CERTIFICATE OF SERVICE] CERTIFICATE of Service/Summons Returned Executed. Sears Home Improvement Products, Incorporated served on 4/19/2007, answer due 5/9/2007. (Fagan, Barry) Modified on 5/1/2007 (Martin, S.). (Entered: 05/01/2007)
6 ATTORNEY APPEARANCE: Michael A. Alaimo appearing on behalf of all defendants (Alaimo, Michael) (Entered: 05/01/2007)
7 STIPULATED ORDER extending date to respond to 2 Amended Complaint to 6/22/07. Signed by Honorable George Caram Steeh. (MBea) (Entered: 05/09/2007)
8 MOTION to Change Venue by all defendants. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 −Butcher v. Gerber Prods. Co., 1998 WL 437150 (S.D.N.Y. Aug. 3, 1998)# 3 Exhibit 2 − Affidavit of Teige McShane# 4 Exhibit 3 − Fox v. Massey Ferguson, Inc., 1995 WL 307485, * 2 (E.D. Mich. March 14, 1995)# 5 Exhibit 4 −Haidar v. Dayton Hudson Corp., 1996 U.S. Dist. LEXIS 18870, *5 (E.D. Mich. 1996)# 6 Exhibit 5 −Almeida v. Leonard Green, et al., 1995 U.S. District LEXIS 3246 (E.D. Mich. 1995)# 7 Exhibit 6 − Judicial Caseload Profiles for the Eastern District of Michigan and Middle District of Florida) (Alaimo, Michael) (Entered: 06/22/2007)
9 MOTION to Dismiss Plaintiffs' First Amended Complaint for Failure to File a Claim by all defendants. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 −White v. American Axle &Manufacturing, 2006 WL 335710 (E.D. Mich. 2/14/06)# 3 Exhibit 2 − Reed v. MCI, 2005 WL 4827381 (E.D.N.C. 10/14/05)# 4 Exhibit 3 −Kulkarni v. City University of New York, 2002 WL 1315596 (S.D.N.Y. 6/14/02)# 5 Exhibit 4 − EEOC V. Honda, 2007 WL 1541364 (S.D. Ohio 5/23/07)# 6 Exhibit 5 − Mongo v. The Home Depot, Inc., 2003 WL 22227864 (N.D. Tex. 9/26/03)) (Alaimo, Michael) (Entered: 06/22/2007)
10 NOTICE of hearing on 8 MOTION to Change Venue, 9 MOTION to Dismiss Plaintiffs' First Amended Complaint for Failure to File a Claim. Responses due by 7/16/2007,Replies due by 7/26/2007, Motion Hearing set for 8/15/2007 10:30 AM before Honorable George Caram Steeh. (MBea) (Entered: 06/29/2007)
11 STIPULATED ORDER Extending Time Period for Plaintiff to Respond to Motions. Signed by Honorable George Caram Steeh. (CGre) (Entered: 07/05/2007)
12 ATTORNEY APPEARANCE: Richard W. Warren appearing on behalf of all defendants (Warren, Richard) (Entered: 07/05/2007)
13 ATTORNEY APPEARANCE: Darcie R. Brault appearing on behalf of all plaintiffs (Brault, Darcie) (Entered: 07/26/2007)
14 RESPONSE to 8 MOTION to Change Venue filed by all plaintiffs. (Attachments: # 1 Index of Exhibits # 2 Exhibit A − First Amended Complaint# 3 Exhibit B − August 1, 2005 letter from Denise Hopman to Caroline Stauss# 4 Exhibit C −

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 6 of 29

07/27/2007 08/10/2007 08/10/2007 08/16/2007
08/20/2007 10/01/2007 10/02/2007 10/18/2007 11/06/2007 11/06/2007 11/21/2007
11/27/2007 12/10/2007 12/17/2007

August 2, 2005 letter from Denise Hopman to Caroline Stauss# 5 Exhibit D − June 30, 2006 letter from Jeanne Barlett to Brenda Hester) (Brault, Darcie) (Entered: 07/27/2007)
15 RESPONSE to 9 MOTION to Dismiss Plaintiffs' First Amended Complaint for Failure to File a Claim filed by all plaintiffs. (Attachments: # 1 Document Continuation # 2 Index of Exhibits # 3 Exhibit A − First Amended Complaint) (Brault, Darcie) (Entered: 07/27/2007)
16 REPLY to Response re 8 MOTION to Change Venue filed by all defendants. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 − Fox v. Massey Ferguson# 3 Exhibit 2 − Butcher v. Gerber Products Co) (Alaimo, Michael) (Entered: 08/10/2007)
17 REPLY to Response re 9 MOTION to Dismiss Plaintiffs' First Amended Complaint for Failure to File a Claim filed by all defendants. (Attachments: # 1 Exhibit White v. American Axle) (Alaimo, Michael) (Entered: 08/10/2007)
Minute Entry −Motion Hearing held on 8/16/2007 re 8 MOTION to Change Venue filed by Sears, Roebuck and Company, et al, 9 MOTION to Dismiss Plaintiffs' First Amended Complaint for Failure to File a Claim filed by Sears, Roebuck and Company, et al, before Honorable George Caram Steeh. Disposition: taken under advisement(Court Reporter Ron DiBartolomeo) (MBea) (Entered: 08/16/2007)
18 ORDER denying 8 Defendants' Motion to Change Venue; denying without prejudice 9 Defendants' Motion to Dismiss. Signed by Honorable George Caram Steeh. (MBea) (Entered: 08/20/2007)
19 ANSWER to Amended Complaint with Affirmative Defenses by all defendants. (Warren, Richard) (Entered: 10/01/2007)
20 NOTICE TO APPEAR: Scheduling Conference set for 11/5/2007 02:30 PM before Honorable George Caram Steeh (MBea) (Entered: 10/02/2007)
21 REPLY to 19 Answer to Amended Complaint ; Reliance on Jury Demand; Proof of Service by all plaintiffs. (Brault, Darcie) (Entered: 10/18/2007)
Minute Entry −Scheduling Conference held on 11/6/2007 before Honorable George Caram Steeh. (MBea) (Entered: 11/06/2007)
22 SCHEDULING ORDER: Final Pretrial Conference set for 10/27/2008 10:00 AM; Jury Trial set for 11/4/2008 09:00 AM before Honorable George Caram Steeh,Dispositive Motion Cut−off set for 7/15/2008 Signed by Honorable George Caram Steeh. (Refer to image for additional dates) (MBea) (Entered: 11/06/2007)
23 MOTION to Dismiss Plaintiffs' Disparate Treatment Age Discrimination Claim for Failure to State a Claim by all defendants. (Attachments: # 1 Index of Exhibits 1−8# 2 Exhibit 1. McKnight v. Gates cite# 3 Exhibit 2. Romero v.Allstate 2004 cite# 4 Exhibit 3. Romero v. Allstate March 2007 cite# 5 Exhibit 4. Romero v. Allstate June 2007 cite# 6 Exhibit 5. Reid v. Purkey cite# 7 Exhibit 6. Massey v. Inman cite# 8 Exhibit 7. Callazo v. BBDO cite# 9 Exhibit 8. Harris v. Radioshack Corp. cite) (Alaimo, Michael) (Entered: 11/21/2007)
24 NOTICE of hearing on 23 MOTION to Dismiss Plaintiffs' Disparate Treatment Age Discrimination Claim for Failure to State a Claim. Responses due by 12/17/2007,Replies due by 1/2/2008, Motion Hearing set for 2/7/2008 10:30 AM before Honorable George Caram Steeh. (MBea) (Entered: 11/27/2007)
25 STIPULATED ORDER extending date for defendants' reply brief to 1/7/08 re 23 MOTION to Dismiss Plaintiffs' Disparate Treatment Age Discrimination Claim for Failure to State a Claim Signed by Honorable George Caram Steeh. (MBea) (Entered: 12/10/2007)
26 RESPONSE to 23 MOTION to Dismiss Plaintiffs' Disparate Treatment Age Discrimination Claim for Failure to State a Claim filed by all plaintiffs. (Attachments: # 1 Document Continuation # 2 Exhibit A − Complaint) (Brault, Darcie) (Entered: 12/17/2007)

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 7 of 29

01/02/2008 01/04/2008 01/07/2008
01/07/2008
01/14/2008 01/14/2008 01/14/2008 02/07/2008
02/08/2008
02/08/2008 02/19/2008 02/25/2008 03/11/2008 03/25/2008

27 MOTION TO EXTEND Time to Respond to Interrogatories and Requests for Production of Documents Posed to Each of the Plaintiffs by all plaintiffs. (Brault, Darcie) (Entered: 01/02/2008)
28 ORDER Referring Pretrial Matters (all future discovery motions) to Magistrate Judge Mona K Majzoub and 27 Motion to Extend. Signed by Honorable George Caram Steeh. (MBea) (Entered: 01/04/2008)
29 REPLY to Response re 23 MOTION to Dismiss Plaintiffs' Disparate Treatment Age Discrimination Claim for Failure to State a Claim − Reply Brief In Support Of Mtn− filed by all defendants. (Attachments: # 1 Index of Exhibits 1−2# 2 Exhibit A, Romero, et al v Allstate Ins Co, et al# 3 Exhibit B McKnight v Gates) (Alaimo, Michael) (Entered: 01/07/2008)
30 MOTION TO EXTEND Time to Respond to Plaintiffs' First Set of Discovery Requests by all defendants. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 − Plaintiffs' First Interrogatories# 3 Exhibit 2 − Plaintiffs' First Document Requests# 4 Exhibit 3 − December 28, 2007 correspondence to Plaintiffs' counsel# 5 Exhibit 4 − December 27, 2007 correspondence to Defense counsel) (Alaimo, Michael) (Entered: 01/07/2008)
31 ORDER re 27 MOTION TO EXTEND Time to Respond to Interrogatories and Requests for Production of Documents: Responses due by 2/8/2008 − Signed by Honorable Mona K Majzoub. (LBar) (Entered: 01/14/2008)
32 ORDER re 30 MOTION TO EXTEND Time to Respond to Plaintiffs' First Set of Discovery Requests: Responses due by 2/8/2008 − Signed by Honorable Mona K Majzoub. (LBar) (Entered: 01/14/2008)
Set Deadlines as to 27 MOTION TO EXTEND Time to Respond to Interrogatories and Requests for Production of Documents and 30 MOTION TO EXTEND Time to Respond to Plaintiffs' First Set of Discovery Requests. Responses due by 2/8/2008 (LBar) (Entered: 01/14/2008)
Minute Entry −Motion Hearing held on 2/7/2008 re 23 MOTION to Dismiss Plaintiffs' Disparate Treatment Age Discrimination Claim for Failure to State a Claim filed by Sears, Roebuck and Company, et al before Honorable George Caram Steeh. Disposition: taken under advisement(Court Reporter Ron DiBartolomeo) (MBea) (Entered: 02/07/2008)
33 RESPONSE to 27 MOTION TO EXTEND Time to Respond to Interrogatories and Requests for Production of Documents Posed to Each of the Plaintiffs filed by all defendants. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 − Plaintiffs' First Interrogatories Directed to Defendants# 3 Exhibit 2 − Plaintiffs' First Request for Production of Documents# 4 Exhibit 3 − December 28, 2007 letter to Darcie Brault from Richard Warren# 5 Exhibit 4 − December 27, 2007 letter to Michael Alaimo from Darcie Brault) (Alaimo, Michael) (Entered: 02/08/2008)
34 RESPONSE to 30 MOTION TO EXTEND Time to Respond to Plaintiffs' First Set of Discovery Requests filed by all plaintiffs. (Brault, Darcie) (Entered: 02/08/2008)
35 REPLY to Response re 30 MOTION TO EXTEND Time to Respond to Plaintiffs' First Set of Discovery Requests filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Alaimo, Michael) (Entered: 02/19/2008)
36 ORDER granting 23 Defendants' Motion to Dismiss Plaintiffs' disparate treatment age discrimination claim and allowing plaintiff to amend complaint. Signed by Honorable George Caram Steeh. (MBea) (Entered: 02/25/2008)
37 AMENDED COMPLAINT with Jury Demand (2nd Amended) filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop against all defendants. (Brault, Darcie) (Entered: 03/11/2008)
38 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Warren, Richard) (Entered:

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 8 of 29

03/31/2008 03/31/2008 04/16/2008 04/16/2008
04/16/2008 04/17/2008
04/21/2008 04/21/2008 04/21/2008 04/21/2008

03/25/2008)
39 Plaintiffs' WITNESS LIST by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Brault, Darcie) (Entered: 03/31/2008)
40 Defendants' Preliminary WITNESS LIST by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Warren, Richard) (Entered: 03/31/2008)
41 MOTION TO EXTEND All Dates re 22 Scheduling Order, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 04/16/2008)
42 MOTION to Compel Discovery by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Second Amended Complaint, # 3 Exhibit B − November 28, 2007 &April 8, 2008 letters to defense counsel from Plaintiffs' counsel, # 4 Exhibit C − Plaintiffs First Request for Production of Documents, # 5 Exhibit D − Responses and Objections to Plaintiffs First Request for Production of Documents, # 6 Index of Exhibits E − Plaintiffs First Interrogatories Directed to Defendants, # 7 Exhibit F − Answers and Objections to Plaintiffs First Interrogatories Directed to Defendants) (Brault, Darcie) (Entered: 04/16/2008)
43 ORDER granting 27 Motion to Extend and 30 Motion to Extend − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 04/16/2008)
44 MOTION to Compel by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Defendants' First Set of Interrogatories (Allen), # 3 Exhibit 2 − Defendants' First Set of Interrogatories (DeRosa), # 4 Exhibit 3 − Defendants' First Set of Interrogatories (Magness), # 5 Exhibit 4 − Defendants' First Set of Interrogatories (McKillop), # 6 Exhibit 5 − Defendants' First Set of Interrogatories (Murphy), # 7 Exhibit 6 − Defendants' First Set of Interrogatories (Novak), # 8 Exhibit 7 − Defendants' First Set of Interrogatories (Willms), # 9 Exhibit 8 − Defendants' First Set of Request for Production (Allen), # 10 Exhibit 9 − Defendants' First Set of Request for Production (DeRosa), # 11 Exhibit 10 − Defendants' First Set of Request for Production (Magness), # 12 Exhibit 11 − Defendants' First Set of Request for Production (McKillop), # 13 Exhibit 12 − Defendants' First Set of Request for Production (Willms), # 14 Exhibit 13 − Defendants' First Set of Request for Production (Murphy), # 15 Exhibit 14 − Defendants' First Set of Request for Production (Novak), # 16 Exhibit 15 − Cumberland Truck Equip Co. v. Detroit Diesel Corp (unpublished case)) (Warren, Richard) (Entered: 04/17/2008)
45 NOTICE of hearing on 44 MOTION to Compel, 41 MOTION TO EXTEND All Dates re 22 Scheduling Order, 42 MOTION to Compel Discovery. Responses due by 5/2/2008, JOINT Statement of Resolved/Unresolved Issues due by 5/21/2008 and Motion Hearing set for 5/28/2008 @ 01:30 PM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 04/21/2008)
Set Deadlines as to 42 MOTION to Compel Discovery, 41 MOTION TO EXTEND All Dates re 22 Scheduling Order and 44 MOTION to Compel. Responses due by 5/2/2008, Resolved/Unresolved Issues due by 5/21/2008 and Motion Hearing set for 5/28/2008 01:30 PM before Magistrate Judge Mona K Majzoub (LBar) (Entered: 04/21/2008)
46 AMENDED NOTICE of hearing on 44 MOTION to Compel, 41 MOTION TO EXTEND All Dates re 22 Scheduling Order and 42 MOTION to Compel Discovery. Responses due by 5/2/2008, Resolved/Unresolved Issues due by 6/2/2008 and Motion Hearing set for 6/9/2008 01:30 PM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 04/21/2008)
Set Deadlines as to 42 MOTION to Compel Discovery, 41 MOTION TO EXTEND All Dates re 22 Scheduling Order and 44 MOTION to Compel. Responses due by 5/2/2008, JOINT Statement of Resolved/Unresolved Issues due by 6/2/2008

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 9 of 29

04/21/2008 05/02/2008 05/02/2008 05/02/2008
05/07/2008
06/02/2008 06/02/2008
06/02/2008 06/09/2008

and Motion Hearing set for 6/9/2008 01:30 PM before Magistrate Judge Mona K Majzoub (LBar) (Entered: 04/21/2008)
47 SECOND AMENDED NOTICE of hearing on 44 MOTION to Compel, 41 MOTION TO EXTEND All Dates re 22 Scheduling Order and 42 MOTION to Compel Discovery. Responses due by 5/2/2008, JOINT Statment of Resolved/Unresolved Issues due by 6/2/2008 and Motion Hearing set for 6/9/2008 @ 01:30 PM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 04/21/2008)
48 RESPONSE to 44 MOTION to Compel filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 05/02/2008)
49 RESPONSE to 41 MOTION TO EXTEND All Dates re 22 Scheduling Order, filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Warren, Richard) (Entered: 05/02/2008)
50 RESPONSE to 42 MOTION to Compel Discovery filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Documents Produced to Plaintiff on February 15, 2008, # 3 Exhibit 2 − Supplemental Answers and Objections, # 4 Exhibit 3 − Documents Produced to Plaintiff on February 15, 2008, # 5 Exhibit 4 − Documents Produced to Plaintiff on February 15, 2008, # 6 Exhibit 5 − Order in the Caudill, et al v. Sears matter, # 7 Exhibit 6 − April 24, 2008 Letter to Plaintiff) (Warren, Richard) (Entered: 05/02/2008)
51 MOTION to Compel by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1 − Notice of Deposition (Garold Allen), # 3 Exhibit 2 − Notice of Deposition (Sylvestor Derosa), # 4 Exhibit 3 − Notice of Deposition (Plaintiff Magness), # 5 Exhibit 4 − Notice of Deposition (Plaintiff McKIllop), # 6 Exhibit 5 − Notice of Deposition (Plaintiff Murphy), # 7 Exhibit 6 − Notice of Deposition (Plaintiff Novak), # 8 Exhibit 7 − Notice of Deposition (Plaintiff Willms), # 9 Exhibit 8 − Letter from Plaintiffs' Counsel to Defense Counsel) (Warren, Richard) (Entered: 05/07/2008)
52 STATEMENT of Resolved and Unresolved Issues by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Brault, Darcie) (Entered: 06/02/2008)
53 REPLY to Response re 44 MOTION to Compel filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Garold Allen's Discovery Responses, # 3 Exhibit 2 − Sylvester DeRosa's Discovery Responses, # 4 Exhibit 3 − Walter Magness' Discovery Responses, # 5 Exhibit 4 − David McKillop's Discovery Responses, # 6 Exhibit 5 − Donald Murphy's Discovery Responses, # 7 Exhibit 6 − Suzanne J. Novak's Discovery Responses, # 8 Exhibit 7− Ronnie Willms' Discovery Responses, # 9 Exhibit 8 − May 16, 2008 letter re discovery) (Warren, Richard) (Entered: 06/02/2008)
54 STATEMENT of Resolved and Unresolved Issues by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Email exchange, # 3 Exhibit 2 − May 30, 2008 Letter from Brault, # 4 Exhibit 3 − May 16, 2008 Letter from Warren) (Warren, Richard) (Entered: 06/02/2008)
Minute Entry −Motion Hearing held on 6/9/2008 re 44 MOTION to Compel filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation, 41 MOTION TO EXTEND All Dates re 22 Scheduling Order, filed by Ronnie Willms, Walter Magness, Garold Allen, Suzanne J. Novak, Donald Murphy, Sylvestor J. Derosa, David McKillop, 42 MOTION to Compel Discovery filed by Ronnie Willms, Walter Magness, Garold Allen, Suzanne J. Novak, Donald Murphy, Sylvestor J. Derosa, David McKillop before Magistrate Judge Mona K Majzoub. Disposition: Taken Under Advisement (Tape #MKM−6/9/08) (VSim) (Entered: 06/09/2008)

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 10 of 29

06/10/2008 06/19/2008 06/19/2008 06/23/2008 06/24/2008
06/24/2008
06/26/2008

55 ORDER granting 41 Motion to Extend; denying 42 Motion to Compel; granting 44 Motion to Compel and granting 51 Motion to Compel − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 06/10/2008)
56 OBJECTION to 55 Order on Motion to Extend, Order on Motion to Compel,, to Portion of Magistrate Judge Ruling Dated June 10, 2008 by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Second Amended Complaint and Jury Demand, # 3 Exhibit B − Plaintiffs' responses to Defendants' discovery, # 4 Document Continuation, # 5 Document Continuation, # 6 Document Continuation, # 7 Document Continuation, # 8 Document Continuation, # 9 Document Continuation, # 10 Exhibit C − May 16, May 21 &May 22 correspondence to and from defense counsel) (Brault, Darcie) (Entered: 06/19/2008)
57 MOTION to Stay re 55 Order on Motion to Extend, Order on Motion to Compel,, by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − 6/10/08 Opinion and Order Resolving Pending Discovery Motions, # 3 Exhibit 2 − 12/07/07 Caudill, et al. v. Sears, et al. Order, # 4 Exhibit 3 − Schering Corp. v. Caraco Phar, et al (Unpublished Case)) (Warren, Richard) (Entered: 06/19/2008)
58 MOTION to Stay re 55 Order on Motion to Extend, Order on Motion to Compel,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 06/23/2008)
59 OBJECTION to 55 Order on Motion to Extend, Order on Motion to Compel,, by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − May 16, 2008 letter to Plaintiff's counsel, # 3 Exhibit 2 − June 10, 2008 Order of the Magistrate Judge, # 4 Exhibit 3 − Defendants' June 9, 2008 Supplemental Answers to Interrogatories, # 5 Exhibit 4 − Defendants' May 2, 2008 Supplemental Answers to Interrogatories, # 6 Exhibit 5 − Defendants February 15, 2008 Supplemental Answers to Interrogatories, # 7 Exhibit 6 − Bates Nos. Sears/Allen 00011−00016 produced by Plaintiff, # 8 Exhibit 7 − Excerpts of Plf Allen's Interrogatory Answers, # 9 Exhibit 8 − Excerpt of Plf Derosa's Interrogatory Answers, # 10 Exhibit 9 − Defendants' February 15, 2008 Supplemental Responses to Document Requests, # 11 Exhibit 10 −− Bates Nos Sears/Allen 00073−00079 produced to Plaintiff, # 12 Exhibit 11 − Bates Nos Sears/Allen 00096−00105 produced to Plaintiffs, # 13 Exhibit 12 − Judge Tarnow's December 4, 2007 Order) (Warren, Richard) Modified on 6/24/2008 (PMil).[IMAGE OF OBJECTION IS MISSING] (Entered: 06/24/2008)
60 OBJECTION to 55 Order on Motion to Extend, Order on Motion to Compel,, by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit 1 − May 16, 2008 letter to Plaintiffs' Counsel, # 3 Exhibit 2 − June 10, 2008 Order of the Magistrate Judge, # 4 Exhibit 3 − Defendants' June 9, 2008 Supplemental Answers to Interrogatories, # 5 Exhibit 4 − Defendants' May 2, 2008 Supplemental Answers to Interrogatories, # 6 Exhibit 5 − Defendants' February 15, 2008 Supplemental Answers to Interrogatories, # 7 Exhibit 6 − Sears/Allen−00011 to Sears/Allen−00016; produced to Plaintiffs, # 8 Exhibit 7 − Excerpts of Plaintiff Allen's Interrogatory Answers, # 9 Exhibit 8 − Excerpt of Plaintiff Derosa's Interrogatory Answers, # 10 Exhibit 9 − Defendants' February 15, 2008 Supplemental Responses to Document Requests, # 11 Exhibit 10 − Sears/Allen−00073 to Sears/Allen−00079; produced to Plaintiffs, # 12 Exhibit 11 − Sears/Allen−00096 to Sears/Allen−000105; produced to Plaintiffs, # 13 Exhibit 12 − Judge Tarnow's December 4, 2007 Order) (Warren, Richard) (Entered: 06/24/2008)
61 ORDER regarding Plaintiffs' and Defendants' Cross−Objections to the Magistrate Judge's 6/10/08 Opinion and Order Resolving pending Discovery Motions − Docket Number 41, 42,44,51 and Amended SCHEDULING ORDER Dates: Discovery cut−off 12/31/2008, Dispositive Motions and Class Certification Motions Cut−off set for 2/15/2009, Final Pretrial Conference re−set for

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 11 of 29

07/07/2008 07/25/2008
07/28/2008 07/28/2008 07/28/2008
08/08/2008 08/08/2008 08/08/2008 08/08/2008 08/11/2008

5/26/2009 09:00 AM, Jury Trial re−set for 6/2/2009 09:00 AM before District Judge George Caram Steeh). Motions terminated: 57 58 MOTIONS to Stay re 55 Order on Motion to Extend, Order on Motion to Compel. Signed by District Judge George Caram Steeh. (Refer to image for additional dates) (MBea) (Entered: 06/26/2008)
62 STIPULATED PROTECTIVE ORDER relative to personal financial information of the plaintiffs. Signed by District Judge George Caram Steeh. (MBea) (Entered: 07/07/2008)
63 MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − June 26, 2008 Order, # 3 Exhibit 2 − Defendants' Second Supplemental Answers to Plaintiffs' First Interrogatories, # 4 Exhibit 3 − Plaintiffs' First Interrogatories, # 5 Exhibit 4 − Plaintiffs' Supplemental Responses to Interrogatories, # 6 Exhibit 5 − Supplemental Responses to Plaintiff's' Responses to Requests for Production of Documents, # 7 Exhibit 6 − Integration Annoncements to HVAC Sales associates dated 10/24/04, 11/19/04) (Warren, Richard) (Exhibit 2 Removed − See Document 81 for Image) (Entered: 07/25/2008)
64 MOTION to Strike Exhibit 2 of Document 63 and Replace with Redacted Exhibit by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Exhibit Redacted Exhibit) (Warren, Richard) Modified on 7/28/2008 (KCla) [Terminated: WRONG DOCUMENT]. (Entered: 07/28/2008)
65 MOTION to Strike Exhibit 2 to Document 63 and replace with Redacted Exhibit by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Exhibit Redacted Exhibit) (Warren, Richard) (Entered: 07/28/2008)
66 MOTION to Compel CROSS−MOTION REGARDING UNRESOLVED DISCOVERY ISSUES by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Second Amended Complaint, # 3 Exhibit B − Privilege Log Provided by Plaintiffs, # 4 Exhibit C − Connelly v. Dun &Bradstreet, Inc.) (Brault, Darcie) (Entered: 07/28/2008)
67 ORDER re 63 MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008: (Responses due by 8/11/2008, Resolved/Unresolved Issues due by 9/17/2008) − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 08/08/2008)
68 ORDER re 66 MOTION to Compel CROSS−MOTION REGARDING UNRESOLVED DISCOVERY ISSUES: (Responses due by 8/14/2008, Resolved/Unresolved Issues due by 9/17/2008) − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 08/08/2008)
Set Deadlines as to 66 MOTION to Compel CROSS−MOTION REGARDING UNRESOLVED DISCOVERY ISSUES. Responses due by 8/14/2008 and Resolved/Unresolved Issues due by 9/17/2008 (LBar) (Entered: 08/08/2008)
Set Deadlines as to 63 MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues Identified the Court's Order: Responses due by 8/11/2008 and Resolved/Unresolved Issues due by 9/17/2008 (LBar) (Entered: 08/08/2008)
69 RESPONSE to 63 MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,,

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 12 of 29

08/14/2008
08/20/2008
09/17/2008 09/23/2008
09/29/2008 09/29/2008 10/07/2008

Terminate Motions,,, filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Formal Opinion 07−445) (Brault, Darcie) (Entered: 08/11/2008)
70 RESPONSE to 66 MOTION to Compel CROSS−MOTION REGARDING UNRESOLVED DISCOVERY ISSUES filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit 1 − Second Supplemental Answers to Plaintiffs Interrogatories, # 3 Exhibit 2 − Plaintiffs' First Interrogatories, # 4 Exhibit 3 − Plaintiffs' Responses to Defendants First Interrogatories, # 5 Exhibit 4 − Plaintiffs' Response to Defendants First Doc Requests, # 6 Exhibit 5 − Integration Announcements to HVAC sales associates, # 7 Exhibit 6 − Affidavit of Shlomo Sawilowsky, # 8 Exhibit 7 − Complaint in Caudill, et al v. Sears, Roebuck and Co., et al) (Alaimo, Michael) (Entered: 08/14/2008)
71 REPLY to Response re 63 MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues raised at Page 4 in the Court's June 26, 2008 Order re 61 Scheduling Order,,,, Terminate Motions,,, filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − 08/12/08 Correspondence to Plaintiffs, # 3 Exhibit 2 − Affidavit of Shlomo Sawilowsky, Ph.D.) (Warren, Richard) (Entered: 08/20/2008)
72 STATEMENT of Resolved and Unresolved Issues by Suzanne J. Novak, Ronnie Willms, Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Warren, Richard) (Entered: 09/17/2008)
73 Second MOTION to Compel Discovery by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Plaintiffs First Interrogatories Directed to Defendants, # 3 Exhibit B − Order Regarding Plaintiffs and Defendants Cross−Objections to the Magistrate Judges June 10, 2008 Opinion and Order Resolving Pending Discovery Motions Docket Numbers 41, 42, 44, 51, # 4 Exhibit C − August 15, 2008 and September 5, 2008 letter from defense counsel, # 5 Exhibit D − Email string 8−05−08 08−12−08 &08−15−08, # 6 Exhibit E − Plaintiffs First Request for Admissions to Defendants and Interrogatories, # 7 Exhibit F − Defendants Answers and Objections to Plaintiffs First Request for Admissions and Interrogatories) (Brault, Darcie) (Entered: 09/23/2008)
74 ORDER re 73 Second MOTION to Compel Discovery. Set Motion and RRDeadlines: (Responses due by 10/7/2008 and JOINT STATEMENT of Resolved/Unresolved Issues due by 10/31/2008) − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 09/29/2008)
Set Deadlines as to 73 Second MOTION to Compel Discovery. Responses due by 10/7/2008 and JOINT STATEMENT of Resolved/Unresolved Issues due by 10/31/2008 (LBar) (Entered: 09/29/2008)
75 RESPONSE to 73 Second MOTION to Compel Discovery filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Third Supplemental Answers and Objections to Plaintiffs' First Interrogatories, # 3 Exhibit 2 − 10/07/08 letter to Ms. Brault enclosing privilege log, # 4 Exhibit 3 − HVAC Sales Associate List, # 5 Exhibit 4 − Attachment to Plaintiffs' 6/27/08 Supplemental Responses, # 6 Exhibit 5 − Exhibit 2 to Defendants' Second

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 13 of 29

10/31/2008 11/06/2008 11/20/2008 11/25/2008 12/16/2008 12/17/2008
12/18/2008 12/23/2008
12/24/2008 12/24/2008 12/24/2008

Supplemental Responses) (Warren, Richard) (Entered: 10/07/2008)
76 STATEMENT of Resolved and Unresolved Issues by Suzanne J. Novak, Ronnie Willms, Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Warren, Richard) (Entered: 10/31/2008)
77 NOTICE of hearing on 63 MOTION regarding Unresolved Discovery Issues in the Court's June 26, 2008 Order Motion Hearing set for 11/20/2008 11:00 AM before District Judge George Caram Steeh. (MBea) (Entered: 11/06/2008)
Minute Entry −Motion Hearing held on 11/20/2008 re 63 MOTION Ruling in Defendants' Favor as to the Unresolved Discovery Issues, 66 CROSS−MOTION REGARDING UNRESOLVED DISCOVERY ISSUES before District Judge George Caram Steeh. Disposition: taken under advisement(Court Reporter Ron DiBartolomeo) (MBea) (Entered: 11/20/2008)
78 ORDER granting in part and denying in part 63 Motion for Ruling in Defendants' Favor as to the Unresolved Discovery Issues and granting in part and denying in part 66 Plaintiffs' Cross Motion Regarding Unresolved Discovery Issues. Signed by District Judge George Caram Steeh. (CGre) (Entered: 11/25/2008)
79 MOTION TO EXTEND Discovery by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/16/2008)
80 Third MOTION to Compel Discovery by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Second Amended Complaint, # 3 Exhibit B − November 12, 2008 correspondence to defense counsel, # 4 Exhibit C − November 17, 2008 correspondence to defense counsel, # 5 Exhibit D − Privilege Log, # 6 Exhibit E − Defendants Responses and Objections to Plaintiffs Fifth Request for Production of Documents (without attachments), # 7 Exhibit F − Defendants Responses and Objections to Plaintiffs Sixth Request for Production of Documents, # 8 Exhibit G − Defendants Objections and Responses to Plaintiffs Seventh Request for Production of Documents and Third Interrogatories Directed to Defendants) (Brault, Darcie) (Entered: 12/17/2008)
81 ORDER granting 65 Motion to Strike Exhibit 2 − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 12/18/2008)
82 RESPONSE to 79 MOTION TO EXTEND Discovery filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Powell v. Honda of America, # 3 Exhibit 2 − Defendants' March 31, 2008 Witness List, # 4 Exhibit 3 − Deposition Excerpts of Tiege McShane, # 5 Exhibit 4 − Deposition Excerpts of Tiege McShane from Caudill, et al., # 6 Exhibit 5 − Scheduling Order dated June 26, 2008, # 7 Exhibit 6 − Raines v. Goedde) (Warren, Richard) (Entered: 12/23/2008)
83 REPLY to Response re 79 MOTION TO EXTEND Discovery filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/24/2008)
84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit C − Excerpts from the deposition transcript of Suzanne Novak, # 3 Exhibit H − Notice of Pendency and Consent to Join) (Brault, Darcie) (Entered: 12/24/2008)
85 SEALED EXHIBIT A − June 27, 2005 email re: HVAC Sales Rep Retention as of June 24, 2005 (FILED UNDER SEAL) re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/24/2008)

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 14 of 29

12/24/2008 12/24/2008 12/24/2008 12/24/2008 12/24/2008 12/29/2008
01/05/2009
01/06/2009 01/06/2009 01/08/2009 01/12/2009

86 SEALED EXHIBIT B − August 22, 2006 email re: Sales Rep Comp: HVAC vs. SHIP (FILED UNDER SEAL) re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/24/2008)
87 SEALED EXHIBIT D − SHIP Integration of HVAC and CSG (FILED UNDER SEAL) re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/24/2008)
88 SEALED EXHIBIT E − August 17, 2004 email re: Demographic Analysis: Comparison of SHIP, HVAC and CSG (FILED UNDER SEAL) re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/24/2008)
89 SEALED EXHIBIT F − Draft Option Review for Pension Retiree Medical (FILED UNDER SEAL) re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/24/2008)
90 SEALED EXHIBIT G − HVAC Sales Associates, Over 40 at Time of Transition, Separated in 2004−2006 (FILED UNDER SEAL) re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 12/24/2008)
91 MOTION to Quash by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Subpoena, # 3 Exhibit 2 − Excerpts from Mark Good's Deposition, # 4 Exhibit 3 − White Mule Co. v. ATC Leasing Co. LLC, 2008 WL 2680273 (N.D. Ohio 2008), # 5 Exhibit 4 − Fleet Business Credit Corp. v. Hill City Oil Co., 2002 WL 1483879 (W.D. Tenn. 2002), # 6 Exhibit 5 − Mapquest Printout, # 7 Exhibit 6 − Mann v. Univ. of Cincinnati, 1997 WL 280188 (6th Cir. May 27, 1997), # 8 Exhibit 7 − Spartanburg Regional Healthcare System v. Hillenbrand Industries, 2005 WL 2571943 (W.D. Mich. 2005), # 9 Exhibit 8 − Winnett v. Caterpillar, 2008 WL 399301 (M.D. Tenn. Feb. 6, 2008)) (Warren, Richard) [DOCUMENT IS TITLED "MOTION FOR A PROTECTIVE ORDER, OR, IN THE ALTERNATIVE, TO QUASH PLAINTIFF'S SUBPOENA DIRECTED AT A.T. KEARNEY"]. Modified on 12/29/2008 (THal). (Entered: 12/29/2008)
92 RESPONSE to 80 Third MOTION to Compel Discovery filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Defendants' Supplemental Responses and Objections to Plaintiffs' Fifth Request for Production of Documents, # 3 Exhibit 2 − 01/05/09 Email from Defense counsel to Plaintiffs' counsel, # 4 Exhibit 3 − 06/26/08 Discovery and Scheduling Order, # 5 Exhibit 4 − Plaintiffs' Witness List, # 6 Exhibit 5 − Caudill v. Sears Order dated 12/04/07, # 7 Exhibit 6 − Defendants' Supplemental Responses and Objections to Plaintiffs' Sixth Request for Production of Documents, # 8 Exhibit 7 − Plaintiffs' Privilege Log) (Warren, Richard) (Entered: 01/05/2009)
93 ORDER granting in part 79 Motion to Extend Discovery − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 01/06/2009)
94 ORDER granting in part and denying in part 73 Second Motion to Compel Discovery − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 01/06/2009)
95 ORDER re 78 REPORT ON REVIEW OF CONTACT FILES − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 01/08/2009)
96 ORDER re 80 Third MOTION to Compel Discovery Joint Statement of Resolved and Unresolved Issues to be efiled on or before January 30, 2009. No Hearing will be Scheduled − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered:

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 15 of 29

01/12/2009 01/12/2009 01/12/2009 01/14/2009 01/15/2009 01/19/2009
01/21/2009 01/29/2009 01/29/2009 01/30/2009 01/30/2009
01/30/2009

01/12/2009)
Set Deadlines as to 80 Third MOTION to Compel Discovery. JOINT STATEMENT of Resolved/Unresolved Issues due by 1/30/2009 (LBar) (Entered: 01/12/2009)
97 ORDER re 91 MOTION to Quash. Set Motion Deadlines: (Responses due by 1/15/2009 and JOINT STATEMENT of Resolved/Unresolved Issues due by 1/30/2009) − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 01/12/2009)
Set Deadlines as to 91 MOTION to Quash. Responses due by 1/15/2009 and JOINT Statement of Resolved/Unresolved Issues due by 1/30/2009 (LBar) (Entered: 01/12/2009)
98 OBJECTION to Plaintiffs' Rule 30(B)(6) Deposition Notice by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Plaintiffs' Rule 30(B)(6) Deposition Notice, # 3 Exhibit 2 − 12/23/08 letter to Plaintiffs' counsel) (Warren, Richard) (Entered: 01/14/2009)
99 RESPONSE to 91 MOTION to Quash Subpoena Directed at A.T. Kearney filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Excerpts from the deposition of Mark Good, # 3 Exhibit B − Subpoena to A. T. Kearney, Inc.) (Brault, Darcie) (Entered: 01/15/2009)
100 REPLY to Response re 80 Third MOTION to Compel Discovery filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Defendants Answers and Objections to Plaintiffs Interrogatories to All Defendants Regarding Witnesses, # 3 Index of Exhibits B − Excerpts from the deposition of Teige McShane, # 4 Exhibit C − Privilege Log) (Brault, Darcie) (Entered: 01/19/2009)
101 STIPULATED ORDER extending date for response to 84 MOTION to Conditionally Certify a Collective Action Under the ADEA : Responses due by 2/2/2009. Signed by District Judge George Caram Steeh. (MBea) (Entered: 01/21/2009)
102 NOTICE by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation of withdrawal of 91 MOTION to Quash. (Warren, Richard) (Entered: 01/29/2009)
103 STIPULATED PROTECTIVE ORDER relative to documents produced by non−party A.T. Kearney, Inc. Signed by District Judge George Caram Steeh. (MBea) (Entered: 01/29/2009)
104 NOTICE TO APPEAR IN ANN ARBOR: Facilitation set for 3/9/2009 10:00 AM before Magistrate Judge Steven D Pepe (VSim) (Entered: 01/30/2009)
105 RESPONSE to 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Deposition Excerpts of Teige McShane, # 3 Exhibit 2 − Deposition Excerpts of Mark Good, # 4 Exhibit 3 − Email from Mark Good dated 4/30/04, # 5 Exhibit 4 − Deposition Excerpts of John Williams, # 6 Exhibit 5 − Deposition Excerpts of Joe Steenbeke, # 7 Exhibit 6 − HVAC History Growth Chart, # 8 Exhibit 7 − Deposition Excerpts of Suzanne Novak, # 9 Exhibit 8 − Deposition Excerpts of Franklin Magness, # 10 Exhibit 9 − Deposition Excerpts of Donald Murphy, # 11 Exhibit 10 − Complaint in Caudill, et al. v. Sears, et al., # 12 Exhibit 11 − Whittum v. Saginaw County (unpublished case)) (Warren, Richard) (Entered: 01/30/2009)
106 STATEMENT of Resolved and Unresolved Issues by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Brault, Darcie) (Entered: 01/30/2009)

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02/04/2009 02/06/2009 02/09/2009 02/09/2009 02/10/2009
02/10/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009

107 STIPULATED ORDER REFERRING MATTER to *Magistrate Judge Steven D Pepe* for Facilitation. Signed by District Judge George Caram Steeh. (MBea) (Entered: 02/04/2009)
108 STRIKEN SEE DOCUMENT 110 FOR IMAGE −−− SUR−REPLY re 80 Third MOTION to Compel Discovery filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Warren, Richard) Modified on 2/9/2009 (LBar). (Entered: 02/06/2009)
109 OBJECTION to 108 Sur−Reply in Response to Plaintiffs' Reply in Support of Third Motion to Compel by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/09/2009)
110 ORDER STRIKING 108 Sur−Reply − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 02/09/2009)
111 REPLY to Response re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit E − Dennis Declaration, # 3 Exhibit L − Shollenbarger v. Planes Moving &Storage, 2008 U.S. App. LEXIS 22002, 6−7 (6th Cir. 2008), # 4 Exhibit GOOD − Excerpts from the deposition of Mark Good, # 5 Exhibit MAGNESS − Excerpts from the deposition of Walter Magness, # 6 Exhibit McSHANE− Excerpts from the deposition of Tiege McShane, # 7 Exhibit NOVAK − Excerpts from the deposition of Suzanne Novak, # 8 Exhibit STEENBEKE − Excerpts from the deposition of Joe Steenbeke, # 9 Exhibit WILLIAMS − Excerpts from the deposition of John Williams) (Brault, Darcie) (Entered: 02/10/2009)
112 SEALED EXHIBIT A − Novak−00121 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
113 SEALED EXHIBIT B − Sears 00154 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
114 SEALED EXHIBIT C − Sears−00169 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
115 SEALED EXHIBIT D − Record of SHIP/HVAC Sales for Plaintiffs (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
116 SEALED EXHIBIT F − Sears/Allen−46478 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
117 SEALED EXHIBIT G − Sears/Allen−30490 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
118 SEALED EXHIBIT H − Sears−00304 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
119 SEALED EXHIBIT I − Sears/Allen 38704 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault,

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 17 of 29

02/10/2009 02/10/2009 02/11/2009 02/12/2009
02/17/2009 02/18/2009 02/18/2009 02/19/2009 03/09/2009 03/12/2009 03/20/2009
03/20/2009 03/23/2009

Darcie) (Entered: 02/10/2009)
120 SEALED EXHIBIT J − Sears/Allen 81885 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
121 SEALED EXHIBIT K − Sears/Allen−46478 (FILED UNDER SEAL) re 111 Reply to Response to Motion,,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/10/2009)
122 Ex Parte MOTION for Leave to File Excess Pages to File Reply to Defendants' Response to Plaintiffs' Motion to Conditionally Certify a Collective Action Under the ADEA by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 02/11/2009)
TEXT−ONLY ORDER GRANTING 122 Ex Parte MOTION for Leave to File Excess Pages not to exceed 18 pages to File Reply to Defendants' Response to Plaintiffs' Motion to Conditionally Certify a Collective Action Under the ADEA filed by Ronnie Willms, Walter Magness, Garold Allen, Suzanne J. Novak, Donald Murphy, Sylvestor J. Derosa, David McKillop. Entered by District Judge George Caram Steeh. (MBea) (Entered: 02/12/2009)
123 STIPULATED ORDER to adjourn dispositive motion cutoff date and stay consideration of Plaintiffs' MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA 84 Signed by District Judge George Caram Steeh. (MBea) (Entered: 02/17/2009)
124 STIPULATED ORDER permitting the parties to conduct depositions of expert witnesses, if necessary, beyond the current discovery deadline. Signed by District Judge George Caram Steeh. (MBea) (DHam). [ORDER TO REMOVE IMAGE ADDED] Modified on 2/19/2009 (DHam). (Entered: 02/18/2009)
126 STIPULATED ORDER permitting the parties to conduct depositions of expert witnesses, if necessary, beyond the current discovery deadline. Signed by District Judge George Caram Steeh. (MBea) (Entered: 02/19/2009)
125 ORDER to remove image re: 124 Stipulation and Order. Signed by District Judge George Caram Steeh. (DHam) (Entered: 02/19/2009)
Minute Entry −Settlement Conference held on 3/9/2009 before Magistrate Judge Steven D Pepe. Disposition: Case Did Not Settle (VSim) (Entered: 03/10/2009)
127 NOTICE of hearing on 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA. Motion Hearing set for 3/30/2009 10:00 AM before District Judge George Caram Steeh at U of M Ann Arbor Law School. (MBea) (Entered: 03/12/2009)
128 Ex Parte MOTION for Leave to File by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Exhibit A − Defendants' Supplemental Brief, # 2 Index of Exhibits, # 3 Exhibit 1 − Colozzi v. St. Joseph's Health, # 4 Exhibit 2 − Notice to Opt In from Doucure v. Matlyn, # 5 Exhibit 3 − Maudlin v. Johnny Kynard Logging, # 6 Exhibit 4 − Simpkins v. Pulte Homes, # 7 Exhibit 5 − Plaintiffs proposed notice, # 8 Exhibit 6 − Guerra v. Big Johnson, # 9 Exhibit 7 − Stillman v. Staples, # 10 Exhibit 8 − Gilbert v. Citigroup) (Warren, Richard) (Entered: 03/20/2009)
129 OBJECTION to 128 Ex Parte MOTION for Leave to File Supplement to Their Response to Plaintiffs' Motion for Conditional Certification, and Derfendants' Objections to Plaintiffs' Proposed Opt−In Notice and Consent Form by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 03/20/2009)
TEXT−ONLY ORDER GRANTING 128 Ex Parte MOTION for Leave to File filed by Sears, Roebuck and Company, Sears Home Improvement Products,

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03/30/2009 03/30/2009 04/15/2009 04/17/2009 04/17/2009 04/30/2009
05/05/2009
05/05/2009 05/05/2009
05/18/2009 05/19/2009 05/19/2009

Incorporated, Sears Holdings Corporation. Entered by District Judge George Caram Steeh. (MBea) (Entered: 03/23/2009)
130 ORDER granting in part and denying in part 80 Third Motion to Compel − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 03/30/2009)
Minute Entry −Motion Hearing held on 3/30/2009 re 84 MOTION to Certify Class Conditionally Certify a Collective Action Under the ADEA filed by Ronnie Willms, Walter Magness, Garold Allen, Suzanne J. Novak, Donald Murphy, Sylvestor J. Derosa, David McKillop before District Judge George Caram Steeh. Disposition: Granted(Court Reporter Ron DiBartolomeo) (MBea) (Entered: 03/30/2009)
131 ORDER granting 84 Plaintiffs' Motion to Conditionally Certify a Collective Action. Signed by District Judge George Caram Steeh. (MBea) (Entered: 04/15/2009)
132 MOTION to Prohibit Defendants from Filing a Motion for Summary Judgment as Untimely by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) Modified on 4/17/2009 (PMil).[CERTIFICATE OF SERVICE IS NOT SERVICE OF THIS DOCUMENT] (Entered: 04/17/2009)
133 CERTIFICATE OF SERVICE by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop re 132 MOTION to Prohibit Defendants from Filing a Motion for Summary Judgment as Untimely Amended Certificate of Service (Brault, Darcie) (Entered: 04/17/2009)
134 RESPONSE to 132 MOTION to Prohibit Defendants from Filing a Motion for Summary Judgment as Untimely filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − February 17, 2009 Stipulated Order, # 3 Exhibit 2 − June 26, 2008 Scheduling Order) (Warren, Richard) (Entered: 04/30/2009)
135 MEMORANDUM re 131 Order on Motion to Certify Class ARGUMENT IN SUPPORT OF PLAINTIFFS' PROPOSED NOTICE AND CONSENT TO JOIN FORM by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Plaintiffs proposed Notice of Pendency and Consent to Join, # 3 Exhibit B − Plaintiffs proposed Notice of Pendency and Consent to Join with comments) (Brault, Darcie) (Entered: 05/05/2009)
136 REPLY to Response re 132 MOTION to Prohibit Defendants from Filing a Motion for Summary Judgment as Untimely filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 05/05/2009)
137 MOTION Approval of Defendants' Notice and Consent Form re 131 Order on Motion to Certify Class by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Defendants' Proposed Opt−In Notice and Consent to Join Forms, # 3 Exhibit 2 − Announcement, # 4 Exhibit 3 − Stillman v. Staples, Inc., # 5 Exhibit 4 − Notice Approved in Cox v. Appliance Direct, Inc., # 6 Exhibit 5 − Guerra v. Big Johnson Concrete Pumping) (Warren, Richard) (Entered: 05/05/2009)
CANCELLED FPTO, FPTC and JT dates − to be rescheduled after decision on pending motion. Entered by District Judge George Caram Steeh. (MBea) (Entered: 05/18/2009)
138 ORDER re 132 MOTION to Prohibit Defendants from Filing a Motion for Summary Judgment as Untimely − No hearing will be scheduled − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 05/19/2009)
139 MEMORANDUM re 135 Memorandum, in Response to Plaintiff's Notice and Consent to Join Form by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Coffey, # 3 Exhibit 2 − 3/30/09 Hearing Transcript, # 4

Case: 2:07-cv-11706 As of: 09/29/2012 10:27 AM EDT 19 of 29

05/20/2009
05/20/2009 05/22/2009 06/01/2009
06/01/2009 06/02/2009
06/02/2009 06/08/2009 06/09/2009 06/29/2009 07/13/2009 07/28/2009

Exhibit 3 − Federal Judiciary Center's Model Notice, # 5 Exhibit 4 − Stillman) (Warren, Richard) (Entered: 05/19/2009)
140 RESPONSE to 137 MOTION Approval of Defendants' Notice and Consent Form re 131 Order on Motion to Certify Class MOTION Approval of Defendants' Notice and Consent Form re 131 Order on Motion to Certify Class MOTION Approval of Defendants' Notice and Consent Form re 131 Order on Motion to Certify Class filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit B − March 30, 2009 motion hearing transcript) (Brault, Darcie) (Entered: 05/20/2009)
141 SEALED EXHIBIT A − Email correspondence (Filed Under Seal) re 140 Response to Motion,, by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 05/20/2009)
142 NOTICE by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop of withdrawal of 132 MOTION to Prohibit Defendants from Filing a Motion for Summary Judgment as Untimely. (Brault, Darcie) (Entered: 05/22/2009)
143 REPLY to Response re 137 MOTION Approval of Defendants' Notice and Consent Form re 131 Order on Motion to Certify Class MOTION Approval of Defendants' Notice and Consent Form re 131 Order on Motion to Certify Class MOTION Approval of Defendants' Notice and Consent Form re 131 Order on Motion to Certify Class filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Plaintiffs' Proposed Notice in Caudill, # 3 Exhibit 2 − Pagliolo v. Guidant Corp.) (Warren, Richard) (Entered: 06/01/2009)
144 REPLY to 139 Memorandum, to Defendants' Brief in Response to Plaintiffs' Notice and Consent to Join Form by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Brault, Darcie) (Entered: 06/01/2009)
145 REPLY to 139 Memorandum, Plaintiffs' AMENDED Reply to Defendants' Brief In Response to Plaintiffs' Proposed Notice and Consent to Join Form by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Exhibit A − Merritt v. Wellpoint, Inc.) (Brault, Darcie) Modified on 6/2/2009 (DWor). [WRONG DOCKET EVENT SELECTED] (Entered: 06/02/2009)
146 Ex Parte MOTION for Leave to File Sur−Reply to Plaintiffs' Amended Reply by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Exhibit 1 − Sur−Reply) (Warren, Richard) (Entered: 06/02/2009)
TEXT−ONLY ORDER GRANTING 146 Ex Parte MOTION for Leave to File Sur−Reply to Plaintiffs' Amended Reply filed by Sears, et al. Entered by District Judge George Caram Steeh. (MBea) (Entered: 06/08/2009)
147 NOTICE of Appearance by Brian M. Schwartz on behalf of Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Schwartz, Brian) (Entered: 06/09/2009)
148 ORDER regarding Notice and Consent to Join Forms (re 137 Motion for Approval of Defendants' notice and consent form re: #131 Order on Motion to Certify Class). Signed by District Judge George Caram Steeh. (MBea) (Entered: 06/29/2009)
149 NOTICE TO APPEAR: Scheduling Conference set for 7/29/2009 10:30 AM before District Judge George Caram Steeh (MBea) (Entered: 07/13/2009)
150 MOTION to Dismiss by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − EEOC Charge of Discrimination as to Novak, # 3 Exhibit 2 − EEOC Charge of Discrimination as to Till, # 4 Exhibit 3 − EEOC Charge of Discrimination as to Willms, # 5 Exhibit 4 − EEOC Charge of Discrimination as to

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07/29/2009 07/29/2009 08/13/2009 08/14/2009 08/24/2009 08/27/2009 09/29/2009 10/19/2009
11/02/2009 11/02/2009
11/03/2009 11/16/2009
11/25/2009
12/03/2009 01/20/2010

Allen, # 6 Exhibit 5 − EEOC Charge of Discrimination as to Magness, # 7 Exhibit 6 − EEOC Charge of Discrimination as to McKillop, # 8 Exhibit 7 − EEOC Charge of Discrimination as to Murphy, # 9 Exhibit 8 − EEOC's report, # 10 Exhibit 9 − Sears' Position Statement, # 11 Exhibit 10 − EEOC Right to Sue Letters, # 12 Exhibit 11 − EEOC Letter to Magness, # 13 Exhibit 12 − EEOC v. Bailey (unpublished case), # 14 Exhibit 13 − Maxwell v. Cuyahoga (unpublished case), # 15 Exhibit 14 − Remien v. EMC Corp. (unpublished case), # 16 Exhibit 15 − EEOC Dismissal and Notice of Rights, # 17 Exhibit 16 − Morris v. Chattanooga (unpublished case)) (Warren, Richard) (Entered: 07/28/2009)
Minute Entry −Scheduling Conference begun on 7/29/2009 and continued to 11/2/2009 10:00 AM before District Judge George Caram Steeh. (MBea) (Entered: 07/29/2009)
Set/Reset Deadlines as to 150 MOTION to Dismiss. Responses due by 11/16/2009 (MBea) (Entered: 07/29/2009)
151 CONSENT to Join by Michael L. Schackner. (CGre) (Entered: 08/14/2009)
152 CONSENT to Join by Jeffrey E. Blow. (CGre) (Entered: 08/14/2009)
153 NOTICE of withdrawal re 151 Consent to Join by Michael L. Schackner. (CGre) (Entered: 08/24/2009)
154 NOTICE (Letter) of withdrawal re 152 Consent to Join by Jeffrey E. Blow. (CGre) (Entered: 08/28/2009)
155 STIPULATED PROTECTIVE ORDER. Signed by District Judge George Caram Steeh. (MBea) (Entered: 09/29/2009)
156 CONSENT to JOIN by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Attachments: # 1 Exhibit A − Consent to Join forms) (Brault, Darcie) (Entered: 10/19/2009)
Minute Entry − Scheduling Conference held on 11/2/2009 before District Judge George Caram Steeh. (MBea) (Entered: 11/02/2009)
157 SCHEDULING ORDER: Dispositive Motion Cut−off set for 4/15/2010 Final Pretrial Conference set for 7/26/2010 10:00 AM before District Judge George Caram Steeh Jury Trial set for 8/17/2010 09:00 AM before District Judge George Caram Steeh Signed by District Judge George Caram Steeh. (Refer to image for additional dates) (MBea) (Entered: 11/02/2009)
Minute Entry − Status Conference held on 11/3/2009 before District Judge George Caram Steeh. (MBea) (Entered: 11/03/2009)
158 RESPONSE to 150 MOTION to Dismiss filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − June 30, 2006 and July 19, 2006 letters to EEOC, # 3 Exhibit B − Unpublished cases) (Brault, Darcie) (Entered: 11/16/2009)
159 REPLY to Response re 150 MOTION to Dismiss filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Excerpts of Novak Deposition Transcript, # 3 Exhibit 2 − Excerpts of Allen Deposition Transcript, # 4 Exhibit 3 − Excerpts of McKillop Deposition Transcript, # 5 Exhibit 4 − Jagla v. Harris Bank, # 6 Exhibit 5 − Gray v. Oracle Corp) (Warren, Richard) (Entered: 11/25/2009)
160 NOTICE of hearing on 150 MOTION to Dismiss. Motion Hearing set for 1/20/2010 11:00 AM before District Judge George Caram Steeh. (MBea) (Entered: 12/03/2009)
Minute Entry − Motion Hearing held on 1/20/2010 re 150 MOTION to Dismiss filed by Sears, Roebuck and Company, before District Judge George Caram Steeh. Disposition: taken under advisement(Court Reporter Ron DiBartolomeo) (MBea) (Entered: 01/20/2010)

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01/20/2010 02/02/2010 02/04/2010
02/05/2010 02/11/2010 02/12/2010 02/12/2010 02/19/2010
02/25/2010 03/01/2010

161 ORDER denying 150 Defendants' Motion to Dismiss. Signed by District Judge George Caram Steeh. (MBea) (Entered: 01/20/2010)
162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Second Amended Complaint and Jury Demand, # 3 Exhibit B − Deposition notices, # 4 Document Continuation) (Brault, Darcie) (Entered: 02/02/2010)
163 MOTION to Compel Discovery from Nine of the Opt−In Plaintiffs and Extend Deadlines by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Opt−In Notice, # 3 Exhibit 2 − Scheduling Order, # 4 Exhibit 3 − November 6, 2009 Letter, # 5 Exhibit 4 − Written Discovery, # 6 Exhibit 5 − December 9, 2009 Letter, # 7 Exhibit 6 − January 11, 2010 email, # 8 Exhibit 7 − January 11, 2010 Letter, # 9 Exhibit 8 − Ahmed v. L(Warren, Richard) (Entered: 02/04/2010)
164 *STRICKEN* ORDER REFERRING MOTION to Magistrate Judge Mona K Majzoub: 163 MOTION to Compel Discovery from Nine of the Opt−In Plaintiffs and Extend Deadlines filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. Signed by District Judge George Caram Steeh (Goltz, D) Modified on 3/1/2010 (MBea). (Entered: 02/05/2010)
165 ORDER REFERRING MOTION to Magistrate Judge Mona K Majzoub: 162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs filed by Ronnie Willms, Walter Magness, Garold Allen, Suzanne J. Novak, Donald Murphy, Sylvestor J. Derosa, David McKillop. Signed by District Judge George Caram Steeh. (Goltz, D) (Entered: 02/11/2010)
166 NOTICE of hearing on 163 MOTION to Compel Discovery from Nine of the Opt−In Plaintiffs and Extend Deadlines, 162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs. JOINT Statement of Resolved/Unresolved Issues due by 3/8/2010 and Motion Hearing set for 3/15/2010 10:00 AM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 02/12/2010)
Set Deadlines as to 162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs, 163 MOTION to Compel Discovery from Nine of the Opt−In Plaintiffs and Extend Deadlines. JOINT Statement of Resolved/Unresolved Issues due by 3/8/2010 and Motion Hearing set for 3/15/2010 10:00 AM before Magistrate Judge Mona K Majzoub (LBar) (Entered: 02/12/2010)
167 RESPONSE to 162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Opt−In Notice, # 3 Exhibit 2 − Scheduling Order, # 4 Exhibit 3 − November 6, 2009 Letter, # 5 Exhibit 4 − Request Served on Bruce, # 6 Exhibit 5 − January 11, 2010 Letter, # 7 Exhibit 6 − Kaas v. Pratt, # 8 Exhibit 7 − Rosen v. Reckitt, # 9 Exhibit 8 − Ingersoll v. Royal, # 10 Exhibit 9 − Daniel v. Quail, # 11 Exhibit 10 − Kyte's Response to Interrogs, # 12 Exhibit 11 − Mako's Response to Interrogs, # 13 Exhibit 12 − Miller's Response to Interrogs, # 14 Exhibit 13 − Rooney's Response to Interrogs, # 15 Exhibit Williams v. Sprint) (Warren, Richard) (Entered: 02/19/2010)
168 REPLY to Response re 162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Second Amended Complaint and Jury Demand, # 3 Exhibit B − Excerpts Novak Deposition) (Brault, Darcie) (Entered: 02/25/2010)
TEXT−ONLY ORDER STRIKING 164 Order Referring Motion 163 to Magistrate Judge for REntered in error, previously referred for hearing and determination of

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03/02/2010 03/02/2010 03/02/2010 03/02/2010 03/02/2010 03/02/2010
03/03/2010

all discovery motions, see 28 . Entered by District Judge George Caram Steeh. (MBea) (Entered: 03/01/2010)
169 [STRICKEN: EXHIBITS 8 and 9, IMAGES REMOVED] MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Chart, # 3 Exhibit 2 − Scheduling Order, # 4 Exhibit 3 − Nov. 6, 2009 ltr, # 5 Exhibit 4 − Bruce Interrogs and Requests, # 6 Exhibit 5 − Dec. 9, 2009 letter, # 7 Exhibit 6 − Jan 11, 2010 email, # 8 Exhibit 7 − Jan 11, 2010 ltr, # 9 Exhibit 8 − Bruce Disc Responses, # 10 Document Continuation, # 11 Document Continuation, # 12 Exhibit 9 − Costello Disc Response) (Warren, Richard) Modified on 3/25/2010 (LHac). (Entered: 03/02/2010)
170 [STRICKEN] EXHIBIT 10 thru 16 re 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Attachments: # 1 Exhibit 11 − Keith Disc Resp, # 2 Exhibit 12 − Kyte Disc Resp, # 3 Exhibit 13 − Mako Disc Resp, # 4 Document Continuation, # 5 Document Continuation, # 6 Exhibit 14 − W Miller Disc Resp, # 7 Exhibit 15 − I Moore Disc Resp, # 8 Exhibit 16 − W. Moore Disc Resp) (Warren, Richard) Modified on 3/25/2010 (LHac). (LHac). (Entered: 03/02/2010)
171 [STRICKEN] EXHIBIT 17 thru 26 re 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Attachments: # 1 Exhibit 18 − Newsome Disc Resp, # 2 Exhibit 19 − Nikias Disc Resp, # 3 Exhibit 20 − Ondahl Disc Resp, # 4 Exhibit 21 − Palmer Disc Resp, # 5 Exhibit 22 − Poranski Disc Resp, # 6 Exhibit 23 − Proctor Disc Resp, # 7 Exhibit 24 − Rooney Disc Resp, # 8 Exhibit 25 − Sims Disc Resp, # 9 Exhibit 26 − Wirtz Disc Resp) (Warren, Richard) Modified on 3/25/2010 (LHac). (LHac). (Entered: 03/02/2010)
172 [STRICKEN EXHIBIT 27, IMAGE REMOVED] EXHIBIT 27 thru 33 re 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Attachments: # 1 Exhibit 27 − Yaras Disc Resp, # 2 Exhibit 28 − Ahmed (unpublished Case), # 3 Exhibit 29 − Opt−in Notice, # 4 Exhibit 30 − Bruce TPP Docs, # 5 Exhibit 31 − Kyte TPP Docs, # 6 Exhibit 32 − Novak Dep Ex 3, # 7 Exhibit 33 − Jagielo (unpublished case)) (Warren, Richard) Modified on 3/25/2010 (LHac). (Entered: 03/02/2010)
173 Emergency MOTION to Strike 171 Exhibit,, 170 Exhibit,, 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates ex parte by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12, # 7 Exhibit 13, # 8 Exhibit 14, # 9 Exhibit 15, # 10 Exhibit 16, # 11 Exhibit 17, # 12 Exhibit 18) (Warren, Richard) (Entered: 03/02/2010)
174 EXHIBIT re 172 Exhibit,, 171 Exhibit,, 173 Emergency MOTION to Strike 171 Exhibit,, 170 Exhibit,, 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates ex parteEmergency MOTION to Strike 171 Exhibit,, 170 Exhibit,, 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates ex parteEmergency MOTION to Strike 171 Exhibit,, 170 Exhibit,, 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates ex parte by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Attachments: # 1 Exhibit 20, # 2 Exhibit 21, # 3 Exhibit 22, # 4 Exhibit 23, # 5 Exhibit 24, # 6 Exhibit 25, # 7 Exhibit 26, # 8 Exhibit 27) (Warren, Richard) (Entered: 03/02/2010)
175 AMENDED SCHEDULING ORDER with STIPULATION: Dispositive Motion Cut−off set for 6/15/2010 Signed by Magistrate Judge Mona K Majzoub. (Refer to image for additional dates) (LBar) (Entered: 03/03/2010)

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03/04/2010 03/04/2010 03/08/2010 03/10/2010 03/12/2010
03/15/2010
03/17/2010 03/19/2010 03/22/2010 03/23/2010 03/23/2010 04/05/2010 04/19/2010

178 NOTICE by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation of withdrawal of 163 MOTION to Compel Discovery from Nine of the Opt−In Plaintiffs and Extend Deadlines. (DEld) (Entered: 03/10/2010)
179 NOTICE OF FAILURE TO COMPLY with Local Rule 5.1.1 issued to attorney Richard W. Warren re 178 Notice to Withdraw Motion (DEld) (Entered: 03/10/2010)
176 STATEMENT of Resolved and Unresolved Issues by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop (Brault, Darcie) (Entered: 03/08/2010)
177 NOTICE of hearing on 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates. Responses due by 3/16/2010, JOINT Statement of Resolved/Unresolved Issues due by noon 3/19/2010 and Motion Hearing set for 3/22/2010 12:30 PM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 03/10/2010)
180 AMENDED NOTICE of hearing on 162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs and 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates. JOINT Statement of Resolved/Unresolved Issues due by 3/19/2010 and Motion Hearing set for 3/22/2010 12:30 PM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 03/12/2010)
181 RESPONSE to 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates filed by Suzanne J. Novak, Ronnie Willms, Donald Murphy, Garold Allen, Sylvestor J. Derosa, Walter Magness, David McKillop. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Order Regarding Plaintiffs and Defendants Cross−Objections to the Magistrate Judges June 10, 2008 Opinion and Order Resolving Pending Discovery Motions Docket Numbers 41, 42, 44, 51, # 3 Exhibit B − First Amended Complaint and Jury Demand, # 4 Exhibit C − Defendants Answer to Plaintiffs First Amended Complaint and Jury Demand (Class Action) and Affirmative Defenses, # 5 Exhibit D − Supplemental Responses to Interrogatories) (Brault, Darcie) (Entered: 03/15/2010)
182 REPLY to Response re 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation. (Attachments: # 1 Exhibit 1 − 2nd Amended Complaint) (Warren, Richard) (Entered: 03/17/2010)
183 STATEMENT of Resolved and Unresolved Issues by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation (Warren, Richard) (Entered: 03/19/2010)
Minute Entry − Motion Hearing held on 3/22/2010 re 162 MOTION for Protective Order Re: Deposition Notices for Twenty Opt−In Plaintiffs and 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates − before Magistrate Judge Mona K Majzoub. Disposition: Taken Under Advisement (Tape #MKM 03/22/10) (LBar) (Entered: 03/23/2010)
184 STIPULATION AND ORDER re 169 MOTION to Compel Complete Discovery Responses from the Opt−In Plaintiffs and to Extend Dates − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 03/23/2010)
185 ORDER granting 173 Motion to Strike− Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 03/23/2010)
186 ORDER granting in part and denying in part 162 Motion for Protective Order Regarding Deposition Notices for Twenty Opt−In Plaintiffs − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 04/05/2010)
187 MOTION for Reconsideration re 186 Order on Motion for Protective Order by Sears Holdings Corporation, Sears Home Improvement Products, Incorporated, Sears, Roebuck and Company. (Warren, Richard) (Entered: 04/19/2010)

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04/19/2010
04/22/2010 04/26/2010 04/30/2010
05/07/2010
05/10/2010 05/11/2010 05/11/2010 05/14/2010 05/14/2010 05/17/2010 05/17/2010 06/03/2010 06/04/2010 06/11/2010

188 EXHIBIT re 187 MOTION for Reconsideration re 186 Order on Motion for Protective Order by Sears Holdings Corporation, Sears Home Improvement Products, Incorporated, Sears, Roebuck and Company (Attachments: # 1 Exhibit 1 − 4/15/10 Order, # 2 Exhibit 2 − Notice to Opt−Ins, # 3 Exhibit 3 − Williams v Sprint, # 4 Exhibit 4 − Slywka v. CMI, # 5 Exhibit 5 − Krygoski Const v City of Menominee) (Warren, Richard) (Entered: 04/19/2010)
189 ORDER re 187 MOTION for Reconsideration re 186 Order on Motion for Protective Order. Set Motion Deadlines: ( Responses due by 4/30/2010) − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 04/22/2010)
190 RESPONSE to 187 MOTION for Reconsideration re 186 Order on Motion for Protective Order filed by All Plaintiffs. (Brault, Darcie) (Entered: 04/26/2010)
191 MOTION to Compel Attendance at Depositions by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Opt−In Notice, # 3 Exhibit 2 − Scheduling Order, # 4 Exhibit 3 − January 11, 2010 Letter, # 5 Exhibit 4 − March 3, 2010 Stipulated Order, # 6 Exhibit 5 − December 9, 2009 letter, # 7 Exhibit 6 − April 5, 2010 Order, # 8 Exhibit 7 − Deposition Notices, # 9 Exhibit 8 − April 16, 2010 letter, # 10 Exhibit 9 − Plaintiffs' Objections, # 11 Exhibit 10 − April 20, 2010 letter, # 12 Exhibit 11 − April 26, 2010 letter) (Warren, Richard) (Entered: 04/30/2010)
192 RESPONSE to 191 MOTION to Compel Attendance at Depositions filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − April 19, 2010 correspondence and Objection to Re−Notices of Taking Depositions of the Opt−In Plaintiffs, # 3 Exhibit B − April 26, 2010 correspondence to defense counsel) (Brault, Darcie) (Entered: 05/07/2010)
193 ORDER granting 187 Motion for Reconsideration re 186 Order on Motion for Protective Order − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 05/10/2010)
194 ORDER re 191 MOTION to Compel Attendance at Depositions. Set Motion Deadlines: (JOINT Statement of Resolved/Unresolved Issues due by 6/1/2010) − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 05/11/2010)
Copy of document 194 was served upon Counsel of Record on this date 5/11/2010. (LBar) (Entered: 05/11/2010)
195 REPLY to Response re 191 MOTION to Compel Attendance at Depositions filed by All Defendants. (Warren, Richard) (Entered: 05/14/2010)
196 EXHIBIT re 195 Reply to Response to Motion by All Defendants (Attachments: # 1 Exhibit 1 − April 29, 2010 Email, # 2 Exhibit 2 − May 7, 2010 Email, # 3 Exhibit 3 − May 10, 2010 Email) (Warren, Richard) (Entered: 05/14/2010)
197 NOTICE of hearing on 191 MOTION to Compel Attendance at Depositions. JOINT Statement of Resolved/Unresolved Issues due by 6/3/2010 and Motion Hearing set for 6/9/2010 01:30 PM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 05/17/2010)
Set Deadlines as to 191 MOTION to Compel Attendance at Depositions. JOINT Statement of Resolved/Unresolved Issues due by 6/3/2010 and Motion Hearing set for 6/9/2010 01:30 PM before Magistrate Judge Mona K Majzoub (LBar) (Entered: 05/17/2010)
198 STATEMENT of Resolved and Unresolved Issues by All Parties (Warren, Richard) (Entered: 06/03/2010)
199 ORDER granting in part 191 Motion to Compel Attendance at Depositions − − Signed by Magistrate Judge Mona K Majzoub. (LBar) (Entered: 06/04/2010)
200 MOTION TO EXTEND Scheduling Order Dates by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − May 7, 2010 Email, # 3 Exhibit 2 − May 10, 2010 Email, # 4 Exhibit 3 − May 17, 2010 Email, # 5 Exhibit 4 − Scheduling Order, # 6 Exhibit 5 − January 11, 2010 Letter, # 7 Exhibit 6 − March 3, 2010 Stipulated Order, # 8 Exhibit 7 − December 9, 2009 Letter, # 9 Exhibit 8 − April 5, 2010 Order, # 10 Exhibit 9 − Deposition Notices, # 11 Exhibit 10 − April 16, 2010

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06/14/2010 06/14/2010 06/15/2010 06/16/2010
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08/06/2010 08/30/2010 08/30/2010

Letter, # 12 Exhibit 11 − Plaintiffs' Objections, # 13 Exhibit 12 − April 20, 2010 Letter) (Warren, Richard) (Entered: 06/11/2010)
201 NOTICE TO APPEAR: Status Conference set for 6/28/2010 11:00 AM before District Judge George Caram Steeh (MBea) (Entered: 06/14/2010)
Re−Set Deadlines/Hearings: Status Conference re−set for 7/1/2010 09:30 AM before District Judge George Caram Steeh (MBea) (Entered: 06/14/2010)
202 RESPONSE to 200 MOTION TO EXTEND Scheduling Order Dates filed by All Plaintiffs. (Brault, Darcie) (Entered: 06/15/2010)
TEXT−ONLY ORDER GRANTING 200 MOTION TO EXTEND Scheduling Order Dates filed by Sears, et al. Depositions to be completed by 7/18/10, Decertification Motion due 7/30/10, Dispositive Motion Cut−off set for 8/30/2010, Joint Final Pretrial Order due 11/30/10, Final Pretrial Conference set for 12/6/2010 09:30 AM, Jury Trial set for 12/13/2010 09:00 AM before District Judge George Caram Steeh Entered by District Judge George Caram Steeh. (MBea) (Entered: 06/16/2010)
Minute Entry − Status Conference held on 7/1/2010 before District Judge George Caram Steeh. (MBea) (Entered: 07/01/2010)
Set Deadlines/Hearings: Telephone Conference set for 7/13/2010 02:30 PM before District Judge George Caram Steeh (MBea) (Entered: 07/13/2010)
Minute Entry − Telephone Conference held on 7/13/2010 before District Judge George Caram Steeh. Judge Lawson to conduct a facilitation. (MBea) (Entered: 07/13/2010)
203 ORDER REGARDING FACILITATIVE MEDIATION. Signed by District Judge David M. Lawson. (Feijoo, TS) (Entered: 07/23/2010)
204 MOTION Exclude Opt−In Plaintiff Charles Nikias by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Order and Notice/Consent Form, # 3 Exhibit 2 − Good Deposition Excerpts, # 4 Exhibit 3 − McShane Deposition Excerpts, # 5 Exhibit 4 − Steenbeke Deposition Excerpts, # 6 Exhibit 5 − Nikias Deposition Excerpts, # 7 Exhibit 6 − Henry v. Quicken Loans (unpublished case), # 8 Exhibit 7 − Pruitt v. City of Chicago (unpublished case), # 9 Exhibit 8 − Taylor v. CSX Transp. (unpublished case), # 10 Exhibit 9 − Job Summary) (Alaimo, Michael) (Entered: 07/30/2010)
205 STIPULATED ORDER extending time to respond to 204 MOTION Exclude Opt−In Plaintiff Charles Nikias : Responses due by 9/15/2010 Signed by District Judge George Caram Steeh. (MBea) (Entered: 08/06/2010)
206 NOTICE of hearing on 204 MOTION Exclude Opt−In Plaintiff Charles Nikias. Responses due by 9/15/2010 Replies due by 10/4/2010 Motion Hearing set for 10/25/2010 02:30 PM before District Judge George Caram Steeh. (MBea) (Entered: 08/30/2010)
207 MOTION for Summary Judgment by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Excerpts of Mark Good Dep, # 3 Exhibit 2 − Sears/Allen 80583, # 4 Exhibit 3 − Excerpts fro Teige McShane's Dep, # 5 Exhibit 4 − Sears/Allen−00070−75, # 6 Exhibit 5 − Excerpts from David McKillop's Dep, # 7 Exhibit 6 − Sears/Allen 00001−2, # 8 Exhibit 7 − Excerpts from Sylvester DeRosa's Dep, # 9 Exhibit 8 − Excerpts from Suzanne Novak's Dep, # 10 Exhibit 9 − Excerpts from Ronnie Willms' Dep, # 11 Exhibit 10 − Excerpts from James Brown's Dep, # 12 Exhibit 11 − Excerpts from Garold Allen's Dep, # 13 Exhibit 12 − Sears/Allen−00010−16, # 14 Exhibit 13 − Excerpts from Joe Steenbeke's Dep, # 15 Exhibit 14 − Sears/Allen 30490, # 16 Exhibit 15 − Sears/Allen 46478−46480, # 17 Exhibit 16 − Excerpts from John Williams' Dep, # 18 Exhibit 17 − Chart Summarizing Named Plaintiffs' and Opt−Ins, # 19 Document Continuation, # 20 Exhibit 18 − Excerpts from William Kyte's Dep, # 21 Exhibit 19 − Excerpts from Charles Nikias' Dep, # 22 Exhibit 20 − Excerpts from Robert Wirtz's Dep, # 23 Exhibit 21 Excerpts from John Newsome's Dep, # 24 Exhibit 22 − Excerpts from Christopher Bruce's Dep, # 25 Exhibit 23 − Excerpts from Michael Rooney's Dep, # 26 Exhibit 24 − Exccerpts from John Mako's Dep, # 27 Exhibit 25 − Excerpts

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from Gil Yaras' Dep, # 28 Exhibit Excerpts from Robert Poranski's Dep, # 29 Exhibit 27 − Excerpts from Walter Miller's Dep, # 30 Exhibit 28 − Freeman v. Potter (unpublished), # 31 Exhibit 29 − Excerpts from Joseph Palmer's Dep, # 32 Exhibit 30 − Chart Summarizing Plaintiffs' Admissions, # 33 Exhibit 31 − Cleverly v. Digital (unpublished), # 34 Exhibit 32 − Adams v. Lucent (Unpublished), # 35 Exhibit 33 − Coffey v. Chattanooga (Unpublished), # 36 Exhibit 34 − Keith's Ans to Interrogs (excerpts), # 37 Exhibit 35 − Wagner v. Matsushita (Unpublished), # 38 Exhibit 36 − Schuch v. Savair (Unpublished), # 39 Exhibit 37 − Kestner v. Stanton (Unpublished), # 40 Exhibit 38 − Wirtz's Answers to Interros (excerpts), # 41 Exhibit 39 − Excerpts from David Proctor's Dep, # 42 Exhibit 40 − Excerpts from Nitin Paranjpe's Dep, # 43 Exhibit 41 − Aldridge v. City of Memphis (Unpublished), # 44 Exhibit 42− Kulkarni v. CUNY (Unpublished), # 45 Exhibit 43 − Reminder v. Roadway (Unpublished), # 46 Exhibit 44 − Mustelier v. Equifax (Unpublished), # 47 Exhibit 45 − Nitin Paranjpe's Report, # 48 Exhibit 46 − Joan Haworth's Expert Report, # 49 Exhibit 47 − Excerpts from Walter Magness' Dep, # 50 Exhibit 48 − Ronnie Willms' Bankruptcy Petition, # 51 Exhibit 49 − Willms' Bankruptcy Case Summary, # 52 Exhibit Toma v. General Revenue (Unpublished)) (Alaimo, Michael) (Entered: 08/30/2010)
208 NOTICE of hearing on 207 MOTION for Summary Judgment. Responses due by 9/23/2010 Replies due by 10/12/2010 Motion Hearing set for 10/25/2010 02:30 PM before District Judge George Caram Steeh. (MBea) (Entered: 09/01/2010)
209 RESPONSE to 204 MOTION Exclude Opt−In Plaintiff Charles Nikias filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Notice of Pendency and Consent to Join, # 3 Exhibit B − Nikias Consent to Join, # 4 Exhibit C − Charles P. Nikias Answers to Defendants First Set of Interrogatories, #1, # 5 Exhibit CN − Excerpts of the deposition of Charles Nikias) (Brault, Darcie) (Entered: 09/13/2010)
210 SEALED EXHIBIT D − June 27, 2005 email re: HVAC Sales REP Retention as of June 24, 2005 (FILED UNDER SEAL) re 209 Response to Motion, by All Plaintiffs. (Brault, Darcie) (Entered: 09/13/2010)
211 SEALED EXHIBIT E − August 22, 2006 email re: Sales Rep Comp: HVAC vs. SHIP (FILED UNDER SEAL) re 209 Response to Motion, by All Plaintiffs. (Brault, Darcie) (Entered: 09/13/2010)
212 STIPULATION AND ORDER extending deadlines re 207 MOTION for Summary Judgment: Responses due by 10/8/2010, Replies due by 10/25/2010, Motion Hearing 204 207 re−set for 11/10/2010 09:30 AM before District Judge George Caram Steeh Signed by District Judge George Caram Steeh. (MBea) (Entered: 09/16/2010)
213 ATTORNEY APPEARANCE: James F. Hermon appearing on behalf of All Defendants (Hermon, James) (Entered: 10/04/2010)
214 NOTICE of Appearance by Patrick F. Hickey on behalf of All Defendants. (Hickey, Patrick) (Entered: 10/04/2010)
215 REPLY to Response re 204 MOTION Exclude Opt−In Plaintiff Charles Nikias From This Collective Action and Dismiss His Claims filed by All Defendants. (Hermon, James) (Entered: 10/04/2010)
216 NOTICE of Appearance by James P. Feeney on behalf of All Defendants. (Feeney, James) (Entered: 10/04/2010)
217 NOTICE of Appearance by Paul A. Wilhelm on behalf of Sears Holdings Corporation, Sears Home Improvement Products, Incorporated, Sears, Roebuck and Company. (Wilhelm, Paul) (Entered: 10/04/2010)
218 MOTION to Exclude Testimony and Opinions of Nitin Paranjpe, Ph.D. by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Paranjpe Report, # 3 Exhibit B − Paranjpe Deposition Transcript, # 4 Exhibit C − 7/8/04 Memorandum, # 5 Exhibit D − 10/28/04 Letter and Attachment, # 6 Exhibit E − Allen Deposition Transcript (excerpts. p.8), # 7 Exhibit F − Exhibit 11 to Paranjpe Deposition, # 8 Exhibit G − 12/10/09 Correspondence from Plaintiff's' counsel, # 9

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Exhibit H − Nikias Consent Form) (Hickey, Patrick) (Entered: 10/06/2010)
219 STIPULATED ORDER extending dates for response and reply re 207 MOTION for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea) (Entered: 10/08/2010)
220 RESPONSE to 207 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit C − Excerpts from the depositions of Plaintiffs, # 3 Exhibit F − Declaration of Nitin Paranjpe, Ph.D., # 4 Exhibit G − Declaration of Nitin Paranjpe, Ph.D., # 5 Exhibit K − Excerpts from the deposition of Mark Good, # 6 Exhibit L − Response to 30(b)(6) deposition, # 7 Exhibit Q − Dennis Declaration, # 8 Exhibit S − Excerpts from the deposition of Joe Steenbeke, # 9 Exhibit T − Excerpts from the deposition of Teige McShane, # 10 Exhibit X − Excerpts from the deposition of Dr. Nitin Paranjpe, # 11 Exhibit Y − EEOC Proposed Rules, # 12 Exhibit AA − Sears Holdings Corporation 2006 Annual Report, # 13 Exhibit BB − Willms Declaration, # 14 Exhibit CC − Correspondence from Trustee) (Brault, Darcie) (Entered: 10/14/2010)
221 SEALED EXHIBIT A − June 27, 2005 email re: HVAC Sales Rep Retention as of June 24, 2005 (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
222 SEALED EXHIBIT B − August 22, 2006 email re: Sales Rep Comp: HVAC vs. SHIP (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
223 SEALED EXHIBIT D − Exit Interview Analysis with Excerpts (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Attachments: # 1 Document Continuation, # 2 Document Continuation, # 3 Document Continuation) (Brault, Darcie) (Entered: 10/14/2010)
224 SEALED EXHIBIT E − Sears records of Internal Complaints (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
225 SEALED EXHIBIT H − SHIP Integration of HVAC and CSG (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
226 SEALED EXHIBIT I − Draft Option Review for Pension Retiree Medical (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
227 SEALED EXHIBIT J − August 17, 2004 email re: Demographic Analysis: Comparison of SHIP, HVAC and CSG (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
228 SEALED EXHIBIT M − Novak 00121 (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
229 SEALED EXHIBIT N − Sears 00154 (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
230 SEALED EXHIBIT O − Sears 00169 (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
231 SEALED EXHIBIT P − Record of SHIP/HVAC Sales for Plaintiffs (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
232 SEALED EXHIBIT R − Sears/Allen−30490 (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
233 SEALED EXHIBIT U − Sears−00304 (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
234 SEALED EXHIBIT V − Sears/Allen 81885 (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)

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235 SEALED EXHIBIT W − Series of Internal Sears Communications (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
236 SEALED EXHIBIT Z − Memorandum re: Impact of Expense Reimbursement (FILED UNDER SEAL) re 220 Response to Motion,,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/14/2010)
237 RESPONSE to 218 MOTION to Exclude Testimony and Opinions of Nitin Paranjpe, Ph.D. filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit D − Declaration and report of Nitin Paranjpe, Ph.D., # 3 Exhibit E − Declaration of Nitin Paranjpe, Ph. D. dated October 13, 2010, # 4 Exhibit F − Deposition of Nitin Paranjpe, Ph. D., # 5 Exhibit G− Excerpts of the deposition of Charles Nikias, # 6 Exhibit H − Charles P. Nikias Answer to Defendants First Set of Interrogatories, # 7 Exhibit I − Exhibit 3 from the deposition of Nitin Paranjpe, Ph. D., # 8 Exhibit J − Declaration of Nitin Paranjpe, Ph. D. dated October 19, 2010, # 9 Exhibit K − Exhibit 4 from the deposition of Nitin Paranjpe, Ph. D.) (Brault, Darcie) (Entered: 10/19/2010)
238 SEALED EXHIBIT A − June 27, 2005 e−mail from McShane to Steenbeke et al (FILED UNDER SEAL) re 237 Response to Motion,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/19/2010)
239 SEALED EXHIBIT B − August 22, 2006 e−mail from Purvis to McShane (FILED UNDER SEAL) re 237 Response to Motion,, by All Plaintiffs. (Brault, Darcie) (Entered: 10/19/2010)
240 SEALED EXHIBIT C − Defendants Third Supplemental Answers and Objections to Plaintiffs First Interrogatories Directed to Defendants (FILED UNDER SEAL) re 237 Response to Motion,, by All Plaintiffs. (Attachments: # 1 Document Continuation) (Brault, Darcie) (Entered: 10/19/2010)
241 REPLY to Response re 207 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Discovery Responses of Opt−In Plaintiffs, # 3 Exhibit B − Transcript of 3/30/09 Hearing, # 4 Exhibit C − Unreported Cases) (Hickey, Patrick) (Entered: 10/28/2010)
242 REPLY to Response re 218 MOTION to Exclude Testimony and Opinions of Nitin Paranjpe, Ph.D. filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Unreported Cases) (Hickey, Patrick) (Entered: 10/29/2010)
243 NOTICE of hearing on 218 MOTION to Exclude Testimony and Opinions of Nitin Paranjpe, Ph.D.. Motion Hearing set for 11/10/2010 09:30 AM before District Judge George Caram Steeh. (MBea) (Entered: 11/04/2010)
Minute Entry − Motion Hearing held on 11/10/2010 re 207 MOTION for Summary Judgment filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation, 218 MOTION to Exclude Testimony and Opinions of Nitin Paranjpe, Ph.D. filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation, 204 MOTION Exclude Opt−In Plaintiff Charles Nikias filed by Sears, Roebuck and Company, Sears Home Improvement Products, Incorporated, Sears Holdings Corporation before District Judge George Caram Steeh. Disposition: taken under advisement(Court Reporter Ron DiBartolomeo) (MBea) (Entered: 11/10/2010)
244 ORDER granting 204 defendants' Motion to exclude opt−in plaintiff Charles Nikias. Signed by District Judge George Caram Steeh. (MBea) (Entered: 03/10/2011)
245 ORDER granting 207 defendants' Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea) (Entered: 03/10/2011)
246 ORDER denying 218 defendants' Motion to exclude testimony and opinions of Nitin Paranjpe, PH.D.. Signed by District Judge George Caram Steeh. (MBea) (Entered: 03/10/2011)

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03/10/2011

247 JUDGMENT in favor of defendants. Signed by District Judge George Caram Steeh. (MBea) (Entered: 03/10/2011)