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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ARTHUR C. RUPERT, LINDA K.

)

AUSTIN, LARRY L. CAMPBELL,

)

KENNETH J. HUNT and WADE C.

)

BITTNER, on behalf of themselves and )

all others similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

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PPG INDUSTRIES, INC.,

)

)

Defendant.

)

Civil Action No. ELECTRONICALLY FILED JURY TRIAL DEMANDED

COLLECTIVE ACTION COMPLAINT Representative Plaintiffs, Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner, on behalf of themselves and all others similarly situated, file this Collective Action Complaint against Defendant PPG Industries, Inc., under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., including the Older Workers Benefit Protection Act (“OWBPA”), 29 U.S.C. § 626(f), and assert as follows:

THE PARTIES 1. Plaintiff Arthur C. Rupert is an individual who is currently 59 years old and resides at 40 Trump Road, Cheswick, PA 15024. 2. Plaintiff Linda K. Austin is an individual who is currently 57 years old and resides at 4092 Valleyvue Drive, Gibsonia, PA 15044. 3. Plaintiff Larry L. Campbell is an individual who is currently 63 years old and resides at 1402 Basinger Court, Raleigh, NC 27612.

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4. Plaintiff Kenneth J. Hunt is an individual who is currently 59 years old and resides at 2817 Kennerly Road, Irmo, SC 29063.
5. Plaintiff Wade C. Bittner is an individual who is currently 53 years old and resides at 842 Linneys Mill Road, Union Grove, NC 28689.
6. Defendant PPG is a Pennsylvania corporation with its principal place of business located in Pittsburgh, Pennsylvania. Defendant maintains its Corporate Headquarters at One PPG Place, Pittsburgh, Pennsylvania 15272. At all relevant times, PPG has continuously been an “employer” within the meaning of 29 U.S.C. § 623 of the ADEA.
7. Mr. Rupert, Ms. Austin, Mr. Campbell, Mr. Hunt and Mr. Bittner are all former employees of PPG.
8. Once the discovery process in this matter is underway, the roles of other unknown conspirators and participants in the wrongdoing identified herein may be revealed, and Representative Plaintiffs reserve their right to then seek leave of court to amend this Complaint to add new parties or claims.
NATURE OF THIS ACTION AND CORE ALLEGATIONS 9. Representative Plaintiffs bring this collective action on behalf of themselves and former similarly situated salaried employees of PPG (the “ADEA Class Members”) for unlawful retaliation against Representative Plaintiffs, and putative ADEA Class Members, for having initiated, or contemplated joinder in, an ADEA lawsuit against PPG, by filing a Counterclaim prohibited by law. In the Counterclaim PPG improperly seeks to recover, not only Representative Plaintiffs’ severance benefits, but also PPG’s attorneys’ fees and litigation costs,

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in violation of the OWBPA, and explicitly threatens similar adverse action against any future opt-in plaintiffs.
10. The above-described conduct constitutes a willful violation of the ADEA.
JURISDICTION 11. This Court has jurisdiction over the federal question subject matter of this civil rights action under 28 U.S.C. § 1331 and 29 U.S.C. § 216(b), as made applicable by 29 U.S.C. § 626(b). 12. This Court has personal jurisdiction over PPG because PPG systematically and continuously engages in substantial interstate commercial conduct and business activity within Pennsylvania and maintains its World Headquarters in Pennsylvania, and because the case arises out of PPG’s unlawful conduct within this District. 13. Plaintiffs have complied with all conditions precedent to filing a suit under ADEA. 14. The Representative Plaintiffs each filed charges of retaliation in violation of the ADEA against PPG with the Equal Opportunity Employment Commission (“EEOC”): Mr. Rupert filed on December 7, 2007; Ms. Austin filed on December 13, 2007; Mr. Campbell filed on December 7, 2007; Mr. Hunt filed on December 7, 2007; and Mr. Bittner filed on December 13, 2007. 15. More than 60 days have elapsed since the Representative Plaintiffs filed charges with the EEOC.

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VENUE 16. Venue is proper in the Western District of Pennsylvania under 28 U.S.C. § 1391(b) and 29 U.S.C. § 1132(e)(2), as the unlawful retaliatory acts complained of by the Representative Plaintiffs were committed within this District. Moreover, PPG maintains its World Headquarters in this District, and Representative Plaintiffs Rupert and Austin, as well as a large concentration of the Class Members, reside and/or worked for PPG in this District. 17. Because the retaliatory conduct that is the subject of this action took place in Pittsburgh, because PPG is headquartered in Pittsburgh, and because of the federal claims asserted herein, this District is an appropriate forum for this collective action.

FACTUAL BACKGROUND 18. On May 24, 2007, Representative Plaintiffs filed a two-count Class Action Complaint, initiating an action at Civil Action No. 07-705 against PPG, alleging, inter alia, violations of the ADEA. More specifically, Plaintiffs alleged that they had been unlawfully terminated by PPG on the basis of age. 19. On August 7, 2007, Representative Plaintiffs filed, as of right, their First Amended Collective Action Complaint. In the First Amended Complaint, Representative Plaintiffs amplified the factual and legal bases for their claims. 20. The First Amended Complaint included more specific allegations related to, inter alia, PPG’s use of a suspect, standard-less evaluation process that targeted older workers for termination in Reductions in Force (“RIFs”). 21. The Amended Complaint also described PPG’s practice of extracting Separation Agreements and Releases (“Release Agreements”) from terminated older workers, which

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purported to waive the employees’ claims under the ADEA, but which were, in fact, not compliant with the OWBPA and, therefore, unenforceable.
22. On September 10, 2007, PPG filed its Answer and Counterclaim in the action, to which it attached as Exhibits, inter alia, the Release Agreements executed by each of the five Representative Plaintiffs.
23. PPG’s Counterclaim asserted a claim for Breach of Contract against each of the Representative Plaintiffs. Relying on the releases, covenants-not-to-sue, and attorneys’ fees provisions contained in the Release Agreements, PPG claimed that “[b]y filing their amended complaint and pursuing this civil action, Representative Plaintiffs have breached contractual obligations owed to PPG … [and] are liable to PPG for compensatory damages equal to the consideration PPG paid them in exchange for the enforceable promises, releases and representations … [and further] are liable to PPG for recovery of PPG’s litigation costs, including attorneys’ fees, incurred in connection with this action for breach of the Release Agreements, as expressly authorized by the Release Agreements.” PPG Counterclaim, ¶¶ 15-17.
24. At the time that PPG asserted its Counterclaim, it knew or should have known that its cause of action is not recognized as a viable claim under the ADEA and OWBPA, as interpreted by the controlling regulations promulgated by the EEOC. 29 U.S.C. § 626(f)(1)(A); 29 C.F.R. § 1625.22(b)(4); 29 C.F.R. § 1625.23(b), (c). PPG’s intent in filing its Counterclaim was to retaliate against the Representative Plaintiffs because they have opposed practices unlawful under the ADEA and have challenged those practices in asserting their claims against PPG. PPG’s conduct is in direct violation of 29 U.S.C. § 623(d).
25. PPG has also threatened putative ADEA Class Members with equally invalid future breach of contract claims. In the Counterclaim PPG menaces the prospective ADEA

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Class Members by stating that “[t]o the extent that other plaintiffs join this action after signing (and not revoking) release agreements substantially the same as those signed (and not revoked) by plaintiffs Rupert, Austin, Campbell, Hunt and Bittner, and after receiving severance payments and other benefits from PPG, such future plaintiffs will also have liability to PPG for recovery of PPG’s litigation costs, including attorneys’ fees, and for compensatory damages equal to the consideration PPG paid them in exchange for enforceable promises and releases.”
26. PPG’s retaliation against the Representative Plaintiffs for the exercise of their protected right to file the Action seeking redress for PPG’s ADEA violations and its concomitant effort to chill the future exercise of that right by potential ADEA Class Members, is indefensible in light of the unenforceability of the waiver provisions, overly broad and misleading covenantsnot-to-sue, unlawful attorneys’ fee provisions contained in each Release Agreement, and defective decisional unit disclosures, as outlined in both Plaintiff’s Amended Complaint and pending summary judgment motion.
COUNT I Retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 623(d)
27. Representative Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 26, above as if fully set forth herein.
28. By terminating the employment of the Representative Plaintiffs, and by doing so with virtually no notice, PPG put each of them in a financial predicament in which they had no choice but to sign the Release Agreement presented to each of them by PPG, so as to receive necessary full severance benefits.

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29. Under such financial compulsion, each of the Representative Plaintiffs executed a Release Agreement that contained a release of claims against PPG, a covenant-not-to-sue, and a provision purporting to make each liable for the attorney fees and litigation costs incurred by PPG in defending any action instituted against it. These provisions were unlawful under the OWBPA. PPG also supplied each of the Representative Plaintiffs with decisional unit disclosures that were also deficient under the OWBPA.
30. When the Representative Plaintiffs initiated the Action, and then filed the First Amended Complaint, they were clearly opposing employment practices of PPG that were and are unlawful under the ADEA. As such, they were engaging in activity that is protected under the ADEA.
31. When PPG filed its Counterclaim against the Representative Plaintiffs in the Action, seeking to recover not only the Representative Plaintiffs’ severance benefits, but also PPG’s attorneys’ fees and litigation costs, in violation of the OWBPA, and therein threatened any future opt-in plaintiffs that it would assert a similar counterclaim against them, as well, PPG took adverse employment action against not only the Representative Plaintiffs, but against all potential members of a class of former PPG salaried employees, as well.
32. PPG’s assertion of its Counterclaim is materially adverse, not only to Representative Plaintiffs and future members of the class, but would also be materially adverse to any salaried employee of PPG.
33. The harm to the Representative Plaintiffs and to future members of the class that is threatened by the assertion of PPG’s Counterclaim is so great that the assertion of such Counterclaim could easily dissuade a former salaried employee from asserting and pursuing an age-discrimination claim against PPG, there is a direct causal connection between the protected

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conduct of the Representative Plaintiffs in initiating the Action, and the materially adverse conduct of PPG against each of them arising from the assertion of PPG’s Counterclaim in the Action. In fact, PPG alleges as much in its Counterclaim.
34. There exists the same direct causal connection between the protected conduct of the future class members in opting in to the class and PPG’s threat to assert the Counterclaim against them if they do.
PRAYER FOR RELIEF WHEREFORE, the Representative Plaintiffs, on behalf of themselves and prospective members of this collective action, request that this Court: a. Enter a judgment declaring this action to be a collective action properly maintained under 29 U.S.C. §216(b), that the Representative Plaintiffs be designated as representatives of the ADEA Class, and that their counsel of record be designated as ADEA Class Counsel; b. Enter a judgment declaring that PPG’s assertion of a Counterclaim against Representative Plaintiffs is retaliation, which violates 29 U.S.C. § 623 (d); c. Enter a judgment declaring that PPG’s threat to assert the Counterclaim against future, opt-in class members is also a violation of 29 U.S.C. § 623(d); d. Enter a judgment and award in favor of the Representative Plaintiffs and the ADEA Class for costs, including, but not limited to, reasonable attorney’s fees, experts’ fees, and other costs and expenses of this litigation associated with opposing PPG’s retaliatory conduct; and, e. Award such other and further legal and equitable relief as may be found appropriate and as this Court may deem just and proper.
JURY TRIAL DEMANDED

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Date: May 6, 2008

Respectfully submitted,
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
s/Bruce C. Fox_____________________ Bruce C. Fox, Esquire Pa. I.D. No. 42576 Rudy A. Fabian, Esquire Pa. I.D. No. 56703 Melissa L. Evans, Esquire Pa. I.D. No. 85978 One Mellon Center, Suite 5240 500 Grant Street Pittsburgh, PA 15219 (412) 566-1500 Fax: (412) 566-1508
Charles A. Lamberton, Esquire Pa I.D. No. 78043 Lamberton Law Firm, LLC 1705 Gulf Tower Pittsburgh, PA 15219 (412) 258-2250 Fax: (412) 258-2249
Counsel for Plaintiffs, Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt, and Wade Bittner, individually and on behalf of all others similarly situated

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 Case: 2:08-cv-616 As of: 10/03/2012 09:32 PM EDT 1 of 4
CLOSED,CONSOL,MEMBER,STAYED
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:08−cv−00616−AJS

RUPERT et al v. PPG INDUSTRIES, INC. Assigned to: Arthur J. Schwab Lead case: 2:07−cv−00705−AJS Member case: (View Member Case) Cause: 29:621 Job Discrimination (Age) Plaintiff ARTHUR C. RUPERT
Plaintiff LINDA K. AUSTIN

Date Filed: 05/06/2008 Date Terminated: 03/25/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Bruce C. Fox Obermayer Rebmann Maxwell &Hippel LLP One Mellon Center 500 Grant Street Suite 5240 Pittsburgh, PA 15219−2502 (412) 566−1500 Fax: (412) 566−1508 Email: bruce.fox@obermayer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin W. Murray Obermayer Rebmann Maxwell &Hippel LLP One Mellon Center Suite 5240 500 Grant Street Pittsburgh, PA 15219 (412) 566−1500 Fax: (412) 566−1508 Email: colin.murray@obermayer.com ATTORNEY TO BE NOTICED
Melissa L. Evans Jackson Lewis LLP One PPG Place, 28th Floor Pittsburgh, PA 15222 (412) 232−0404 Fax: (412) 232−3441 Email: melissa.evans@jacksonlewis.com ATTORNEY TO BE NOTICED
Rudy A. Fabian 1623 Shady Ave. Pittsburgh, PA 15217 412.401.2641 Email: rudyfabian@verizon.net ATTORNEY TO BE NOTICED
represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin W. Murray (See above for address) ATTORNEY TO BE NOTICED

Case: 2:08-cv-616 As of: 10/03/2012 09:32 PM EDT 2 of 4

Melissa L. Evans (See above for address) ATTORNEY TO BE NOTICED

Rudy A. Fabian (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LARRY L. CAMPBELL

represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colin W. Murray (See above for address) ATTORNEY TO BE NOTICED

Melissa L. Evans (See above for address) ATTORNEY TO BE NOTICED

Rudy A. Fabian (See above for address) ATTORNEY TO BE NOTICED

Plaintiff KENNETH J. HUNT

represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colin W. Murray (See above for address) ATTORNEY TO BE NOTICED

Melissa L. Evans (See above for address) ATTORNEY TO BE NOTICED

Rudy A. Fabian (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
WADE C. BITTNER on behalf of themselves and all others similarly situated

represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colin W. Murray (See above for address) ATTORNEY TO BE NOTICED

Melissa L. Evans (See above for address) ATTORNEY TO BE NOTICED

Rudy A. Fabian (See above for address) ATTORNEY TO BE NOTICED

Case: 2:08-cv-616 As of: 10/03/2012 09:32 PM EDT 3 of 4

V. Defendant PPG INDUSTRIES, INC.

represented by James F. Glunt Ogletree, Deakins, Nash, Smoak &Stewart, P.C. One PPG Place, Suite 1900 Pittsburgh, PA 15222 412−394−3339 Fax: 412−232−1799 Email: jay.glunt@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence H. Murphy Littler Mendelson, P.C. 625 Liberty Avenue EQT plaza, 26th Floor Pittsburgh, PA 15222 412.201.7621 Fax: 412.456.2377 Email: tmurphy@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jaime S. Tuite Buchanan Ingersoll &Rooney 301 Grant Street One Oxford Centre, 20th Floor Pittsburgh, PA 15219 (412) 562−8419 Fax: (412) 562−1041 Email: Jaime.Tuite@bipc.com ATTORNEY TO BE NOTICED
Lisa M. Passarello Buchanan Ingersoll &Rooney 301 Grant Street One Oxford Centre, 20th Floor Pittsburgh, PA 15219 (412) 562−8800 Email: lisa.passarello@bipc.com ATTORNEY TO BE NOTICED

Date Filed 05/06/2008
05/06/2008 05/07/2008
05/13/2008

# Docket Text
1 COMPLAINT against PPG INDUSTRIES, INC. ( Filing fee $ 350 receipt number 885131), filed by KENNETH J. HUNT, WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL. (Attachments: # 1 Civil Cover Sheet # 2 Summons) (plh) (Entered: 05/06/2008)
Summons Issued as to PPG INDUSTRIES, INC. (plh) (Entered: 05/06/2008)
2 NOTICE that instant civil action has been designated for placement into the United States District Court's Alternative Dispute Resolution program. Parties are directed to fully complete the required 26(f) report, which includes the stipulation of selecting an ADR process. Counsel for plaintiff (or in the case of a removal action, counsel for removing defendant) shall make service of the notice on all parties. (ms) (Entered: 05/07/2008)
3 WAIVER OF SERVICE Returned Executed by KENNETH J. HUNT, WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL. PPG INDUSTRIES, INC. waiver sent on 5/13/2008, answer due 7/14/2008. (Fox, Bruce) (Entered: 05/13/2008)

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05/14/2008
05/14/2008
06/05/2008 06/05/2008 06/05/2008 06/17/2008 06/17/2008 06/17/2008 06/17/2008 06/17/2008 06/17/2008 06/17/2008 06/17/2008 06/18/2008
06/18/2008

4 ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE. Rule 26 Meeting Report, Proposed Case Management Order, and Stipulation selecting ADR process due by 7/14/2008. Case Management Conference set for 7/21/2008 at 08:00 AM before Arthur J. Schwab. Signed by Judge Arthur J. Schwab on 05/14/08. (eca) (Entered: 05/14/2008)
TEXT ORDER. Counsel for Plaintiffs is hereby directed to immediately serve the Order Setting Initial Case Management Conference upon the Defendant or Counsel for Defendant. Signed by Judge Arthur J. Schwab on 05/14/08. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 05/14/2008)
5 NOTICE of Appearance by Rudy A. Fabian on behalf of KENNETH J. HUNT, WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL (Fabian, Rudy) (Entered: 06/05/2008)
6 NOTICE of Appearance by Colin W. Murray on behalf of KENNETH J. HUNT, WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL (Murray, Colin) (Entered: 06/05/2008)
7 NOTICE of Appearance by Melissa L. Evans on behalf of KENNETH J. HUNT, WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL (Evans, Melissa) (Entered: 06/05/2008)
8 NOTICE of Appearance by James F. Glunt on behalf of PPG INDUSTRIES, INC. (Glunt, James) (Entered: 06/17/2008)
9 Disclosure Statement identifying None as corporate parent, by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 06/17/2008)
10 Unopposed MOTION to Consolidate Cases by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 06/17/2008)
11 BRIEF in Support re 10 Motion to Consolidate Cases (Unopposed) filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 06/17/2008)
12 Unopposed MOTION to Stay by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 06/17/2008)
13 NOTICE of Appearance by Terrence H. Murphy on behalf of PPG INDUSTRIES, INC. (Murphy, Terrence) (Entered: 06/17/2008)
14 NOTICE of Appearance by Lisa M. Passarello on behalf of PPG INDUSTRIES, INC. (Passarello, Lisa) (Entered: 06/17/2008)
15 NOTICE of Appearance by Jaime S. Tuite on behalf of PPG INDUSTRIES, INC. (Tuite, Jaime) (Entered: 06/17/2008)
16 ORDER granting 10 Motion to Consolidate Cases; granting 12 Motion to Stay. Civil Action No. 08−616 is consolidated with 07−705 for all pretrial and trial purposes. PPG's obligation to respond to the Complaint in 08−616 is STAYED until 20 days after the entry of the Order by the District Court on the Motions for Summary Judgment pending in 07−705. Signed by Judge Arthur J. Schwab on 06/18/08. (eca) (Entered: 06/18/2008)
ORDER CANCELLING DEADLINES. In light of this civil action being consolidated with Civil Action No. 07−705, the deadlines and the Initial Case Management Conference that were scheduled in 4 Order Scheduling Initial Case Management Conference are hereby CANCELLED. Signed by Judge Arthur J. Schwab on 06/18/08. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 06/18/2008)