CasCea2s:e052-:m07c-c0v2-00205705-DAoJcSumDeonct u2m95e6n-t11 Filed 05/24/200707PagPea1geof13o1f 31

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

ARTHUR C. RUPERT, LINDA K.

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AUSTIN, LARRY L. CAMPBELL,

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KENNETH J. HUNT and WADE C.

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BITTNER, individually and on behalf of )

all others similarly situated,

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Plaintiffs,

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vs.

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PPG INDUSTRIES, INC.,

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Defendant.

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Civil Action No. ELECTRONICALLY FILED JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT AND NOW come Representative Plaintiffs, Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and W ade C. Bittn er, individually and on behalf of all othe rs similarly situated (“Plaintiffs”), by and through their counsel , Obermayer Rebmann Maxwell & Hippel LLP, and file this Class Action Complaint against Defendant PPG Industries, Inc. (“PPG” or “Defendant”), pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq (“ADEA”), and the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001, et seq, and aver as follows:
THE PARTIES 1. Plaintiff Arthur C. Rupert (“Mr. Rupert ”) is an individual who is currently 58 years old and resides at 40 Trump Road, Cheswick, PA 15024. 2. Plaintiff Linda K. Austin (“Ms. Austin”) is an individual who is currently 56 years old and resides at 4092 Valleyvue Drive, Gibsonia, PA 15044.

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3. Plaintiff Larry L. Campbell (“Mr. Campbell”) is an individual who is currently 61 years old and resides at 1402 Basinger Court, Raleigh, NC 27612.
4. Plaintiff Kenneth J. Hunt (“Mr. Hunt”) is an individual who is currently 58 years old and resides at 2817 Kennerly Road, Irmo, SC 29063.
5. Plaintiff Wade C. Bittner (“M r. Bittner”) is an individual who is curr ently 52 years old and resides at 842 Linneys Mill Road, Union Grove, NC 28689.
6. Defendant PPG is a Pennsylvania corporation with a principal place of business in Pittsburgh, Pennsylvania.
7. Mr. Rupert, Ms. Austin, Mr. Cam pbell Mr. Hunt and Mr. Bittne r are all f ormer employees of PPG.
PROCEDURAL HISTORY 8. On October 25, 2006, Mr. Rupert filed charges of age discrimination against PPG with the Equal Employment Opportunity Commission (“EEOC”). 9. On November 3, 2006, Ms. Austin filed charges of age discrimination against PPG with the EEOC. 10. On November 8, 2006, Mr. Campbell filed charges of age discrimination against PPG with the EEOC. 11. On November 27, 2006, Mr. Hunt filed charges of age discrimination against PPG with the EEOC. 12. On November 27, 2006, Mr. Bittner filed charges of age discrimination against PPG with the EEOC.

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JURISDICTION 13. Plaintiffs invoke the jurisdiction of this Court pursuant to 28 U.S.C. § 1331, 29 U.S.C. § 1132(e)(1), and 29 U.S.C. § 216(b), as made applicable by 29 U.S.C. § 626 (b).

VENUE 14. Venue is properly laid within the Western District of Pennsylvania pursuant to 28 U.S.C. § 1391(b) and 29 U.S.C. § 1132(e)(2), as the acts complained of by the Plaintiffs were primarily committed or occurred within this District, and PPG resides in this District.

CLASS ACTION ALLEGATIONS 15. Plaintiffs bring this action as a class action pursuant to Federal Rules of Civil Procedure 23(a), and 23(b)(1), (2) and (3) and as a collective action pursuant to 29 U.S.C. § 216(b) on behalf of all former salaried employees of PPG whose employment with PPG within the United States was terminated by PPG or who were pressured by PPG to resign or retire and who were at least 40 years of age at the time of such termination, resignation or retirement. 16. The Class of Plaintiffs is so numerous as to make it impractical to bring all eligible members of the class before the Court. Based on PPG’s pervasive practice of ridding itself of older employees, Plaintiffs believe that there are thousands of Class Members. In many instances the affected Class Members are unaware that they may have viable claims against PPG. 17. Multiple common questions of law and fact affect the rights of each Member of the Class, including but not limited to the following:
a. Was the Class Member formerly a salaried employee of PPG? b. Was the Class Member’s employment terminated by PPG or was the Class
Member pressured by PPG to resign or retire?

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c. Was the Class Member at least 40 years of age at the time that his employment by PPG ended?
d. Was the termination of the Class Member’s employment motivated, at least in part, by the Class Member’s age?
e. Was the Class Member replaced by one or more younger employees?
f. If a Class Member had continued working for PPG beyond the time his employment was terminated, would he have obtained vested pension benefits, or greater vested benefits?
g. Did the termination of a Class Member’s employment by PPG interfere with his attainment of a pension benefit or a greater pension benefit?
h. Are any purported waivers of claims against PPG made by a Class Member part of an agreement between PPG and that Class Member that is written so as to be understood by that Class Member or by the average individual?
i. Does the waiver of claims against PPG made by a Class Member specifically refer to rights or claims arising under the ADEA?
j. Does the waiver of claims against PPG made by a Class Member purport to waive future claims?
k. Is there valid consideration for a Class Member’s purported waiver of claims against PPG?
l. Was each Class Member that has executed a purported release in favor of PPG advised in writing by PPG to consult an attorney?
m. Was each Class Member that entered into an agreement with PPG that contains a waiver, given at least 21 days to consider the agreement?
n. Was each Class Member that entered into an agreement with PPG that contains a waiver, given a period of at least 7 days to revoke such Agreement?
o. Was each Class Member that executed a waiver of claims in favor of PPG given the information specified in 29 U.S.C.A. §626(f)(1)(H)?
18. The Plaintiffs’ claims are typical of the claims of the Members of the Class,
arising from the illegal termination by PPG of their employment.

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19. Plaintiffs will assure the fair and adequate representation of all Members of the Class, and have no conflict with other Class Members in the maintenance of this action. Their interests in this action are antagonistic to the interests of PPG. Plaintiffs are aware that they cannot settle this Class action without Court approval and will vigorously pursue the Class claims throughout the course of this litigation.
20. Plaintiffs will also assure the fair and adequate representation of the Class by their retention of attorneys who are experienced in class actions. Plaintiffs’ counsel have agreed with Plaintiffs to pay all reasonable costs in this case contingent upon the outcome of this case.
21. If pursued as a series of individual claims, this action could substantially affect the rights of similarly situated individuals who might pursue their claims against PPG. In addition, PPG might, in that situation, be confronted with inconsistent or varying adjudications.
22. The conduct of PPG alleged herein is generally applicable to the Class and the declaratory and injunctive relief sought herein is, therefore, appropriate.
23. A class action is a superior method to adjudicate this controversy, because the claims of the Class Members are virtually identical, as they raise the same questions of law and require the same kind of proof. The common questions of law and fact clearly predominate over individual issues and facts.
24. Because many of the individual claims would be too small to justify individual actions by Class Members, most Class Members are unlikely to have any interest in individually controlling the prosecution of this case. To the extent that certain individuals do desire to control the litigation, they can opt out of the Rule 23 Class or decline to sign a consent to be part of the Section 216(b) collective action.

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25. Because a large number of the illegal terminations by PPG took place in Pittsburgh, because PPG is headquartered in Pittsburgh, and because of the federal claims asserted herein, this is an appropriate forum for this nation-wide class action.
26. Plaintiffs believe and therefore aver that there are no unusual legal or factual issues which would create manageability problems. Factual issues as to the measure of damages can be handled on an individual basis.
FACTUAL BACKGROUND General Allegations Regarding PPG’s Conduct 27. Historically, PPG had always been a company that valued its employees and recognized that, because its businesses were those that depended on technical innovation, its success was tied very closely to the creativity, satisfaction and commitment of its employees. Consequently, PPG had always treated its employees well and it came to be thought of as the type of stable employer where an individual could spend his entire career. 28. In or about 1997, when Raymond LeBoeuf became Chairman of the Board of PPG, PPG’s longstanding corporate philosophy of commitment to its employees began to erode. Under LeBoeuf’s leadership, PPG embarked upon an aggressive program of cost-cutting, “belttightening” and “efficiency improvement.” 29. One of the primary methods of cost-cutting employed by PPG was an aggressive program of reductions in force, or “RIF’s”. Starting at the time of LeBoeuf’s ascension, and continuing until the present, PPG has undergone hundreds of RIF’s in the name of cost-cutting and efficiency improvements. 30. Unfortunately, the selection of individuals that would be the victims of these work

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force-reductions, increasingly were being made not on the basis of the level of competence, performance, or dedication of the employees, but rather, on the basis of their age.
31. PPG realized that older employees, who generally had more experience, also generally had higher salaries, and were closer to retirement, at which time their vested retirement benefits would become payable. PPG also realized that the continued employment of those older employees would increase those retirement benefits.
32. Under LeBoeuf’s reign, members of Senior Management of PPG instilled a corporate-wide mentality that the older employees were “not pulling their weight” and that an increasingly competitive business environment justified their removal by the company and the retention of the cheaper and, allegedly, more aggressive younger employees.
33. The foregoing attitude filtered down from upper management to the ranks of middle managers, who with the tacit if not the express blessing of their superiors and under pressure to cut costs, were only too happy to focus their reduction-in-force attentions on older employees. This legacy of age discrimination is institutionalized throughout the company.
34. Mechanisms for PPG’s age discrimination varied, but certain practices became highly prevalent within the company. The most common manifestation would be for PPG to simply call an older employee into a conference room and inform him that his employment with PPG was ending immediately. Typically, no explanation would be given, other than “corporate downsizing”, “reduction in force” or the elimination of the employees’ position. In many cases, the employees would specifically be told that their termination had nothing to do with the quality of their work or performance history.
35. In some cases, PPG would, in advance of the older employee’s termination, institute a concerted effort to fabricate poor performance reviews, so that it would ultimately

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appear that there was a justifiable basis for the termination. In these cases, it is frequently obvious that years of favorable performance reviews are followed by an abrupt change to poor reviews.
36. If the older employee happened to be near retirement age, PPG would often couch its forced termination of the employee as the offer of a “retirement package.” The proferred “retirement package” was, however, exactly the same as what other terminated employees were being offered.
37. If an employee hesitated at accepting such a retirement package, he or she often would, with varying degrees of subtlety, be threatened by PPG with the results of the poor performance reviews that had been fabricated, which were used as a lever to force retirement.
38. In cases where the older employee was not sufficiently close to retirement age to offer him a “retirement package” and where a sufficiently damaging performance record had been fabricated, PPG would often simply pressure the employee to resign, rather than retire, thereby making the cessation of his employment appear to be the result of the employee’s decision, not PPG’s.
39. The termination of an older employee was usually followed by the delegation of his work to one or more younger employees.
40. As, over the years, PPG became more sophisticated in its age discrimination, it learned to take steps to camouflage this fact. As part of this scheme, PPG would seldom immediately hire or promote a younger person to the position held by the terminated older employee. At a minimum, a different title would be used. Often the position was left unfilled for a period of time and the responsibilities simply distributed among existing employees. After

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sufficient time had passed to obscure the connection between the termination and a younger employee’s assumption of the position, PPG would then fill the position.
41. It would also not be unusual for PPG to terminate an older employee with decades of tenure and the concomitant accrual of benefits, and then offer to hire him back to do the same work as a contract employee – without the benefits he had labored to accrue.
42. PPG’s systematic age discrimination began at or about the time Mr. LeBoeuf became CEO and has continued to the present. While PPG appears to have focused especially on its technical, scientific and research and development employees, as well as its marketing force, its age discrimination program has been implemented in every corner of PPG’s organization and in every PPG location in the United States.
43. During the decade during which it has been methodically terminating its older employees, PPG has become quite sophisticated in the process. It has attempted to refine its techniques so as not to run afoul of the various federal statutes designed to protect employees from the very conduct in which PPG has been engaged.
44. In fact, PPG has become extremely focused on its agenda of eliminating older workers in order to meet short-term quarterly financial goals, to the detriment of its primary business.
45. PPG’s program of elimination of older workers has had disastrous consequences for the thousands of employees who have been terminated, and the human cost has been enormous.
Allegations Concerning Mr. Rupert 46. Mr. Rupert was born on October 26, 1948 and is presently 58 years of age. 47. Mr. Rupert was first employed by PPG in 1980. From 1980 until 1986, he was

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employed in the operations planning department. In 1986, he was promoted to the position of Industrial Sales Service Manager – Aluminum Extrusions.
48. In 1987, he joined the Springdale General Industrial Regular Office as an Industrial Sales Coordinator. After having been promoted to Sales Service Supervisor, Mr. Rupert’s most recent position was Manager of Liquid Pricing and Quotations, in the General Industrial Business Unit located in Springdale, Pennsylvania.
49. In that position, he was in charge of pricing of new products in the General Industrial product line, for setting corporate profit guidelines on these products, which numbered between 6,000 and 7,000, and for generating formal quotations.
50. During his final year of employment with PPG, Mr. Rupert typically worked between 48 and 55 hours per week.
51. Mr. Rupert's performance was acknowledged by PPG and he consistently received good reviews of his work.
52. During his tenure at PPG, Mr. Rupert was regularly commended by customers of PPG for his efforts on their behalf. These customers included the Cupples Product Division of the H.H. Robertson Company, Linetec, Syn-Tech Window Systems, Inc., Niles Manufacturing & Finishing, Inc. and York International.
53. During the entire time that he worked for PPG, Mr. Rupert was repeatedly recognized for the quality of his work and the effort and dedication that he brought to his job. He was nominated for quality recognition awards, was commended for efforts that were “a true example of what teamwork and support really is.” He was recognized for his efforts in generating new business, for his “dedication and commitment to servicing [PPG’s] customers.” PPG realized that “the Industrial Coatings business ha[d] been successful… because of

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contributions like yours,” and that “[c]ontributions like this are at the heart of [PPG’s] success in C&R Industrial Coatings.”
54. Throughout his uninterrupted twenty-six year career with PPG, Mr. Rupert was a hard-working, efficient, conscientious, and highly motivated employee.
55. Plaintiff was fifty-seven years of age as of January 23, 2006. 56. On January 23, 2006, Gerald Dooley, who had been one of Mr. Rupert's supervisors for approximately one month, unexpectedly called him into a conference room where John Prazenica, a PPG Human Resources Director, informed him that his position was being eliminated “due to corporate down-sizing,” after twenty-six years of continuous employment with PPG. Mr. Dooley left the room almost immediately. 57. Mr. Prazenica offered no reason for Mr. Rupert’s termination, other than the alleged “downsizing.” However, he did tell Mr. Rupert that he had to vacate his office, immediately. 58. Mr. Rupert was permitted by PPG to briefly return to his office—but only under escort—to pick up his personal possessions. 59. PPG’s stated reason for Mr. Rupert’s discharge—“downsizing”—is simply a pretext to mask PPG’s age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries. 60. Immediately after his termination, PPG transferred a younger employee into Mr. Rupert’s position. When Mr. Rupert had returned to his office to collect his personal belongings, this individual had come into the office with tears in his eyes and said “I just want you to know how bad I feel. They just told me I have to do your job. I don’t want to do your job. I don’t know how to do your job.” Two weeks later, this individual resigned.

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61. PPG terminated Mr. Rupert before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.
62. Had Mr. Rupert been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.
63. At the time of his discharge, Mr. Rupert was entitled to five weeks of paid vacation per year.
64. PPG treated Mr. Rupert less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
65. PPG’s conduct in terminating Mr. Rupert was contrary to and in willful violation of the provisions of 29 U.S.C.§623(a), inasmuch as it was based in whole or in part, on his age.
66. As a direct and proximate result of PPG’s conduct in terminating Mr. Rupert, he has lost and will continue to lose the benefits of his employment with PPG, including, but not limited to, salary, bonuses, vacation time, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.
Allegations Concerning Ms. Austin 67. Ms. Austin was originally hired by PPG to work in the mail room when she was just 18 years old. She spent the next 38 years—the entirety of her working career—at PPG. During that time, she never received a bad performance review and in 1998 and 1999 received performance bonuses.

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68. After her start in the mail room, she became a receptionist and then a clerk in the accounting department. After becoming a secretary, she started night school working towards a chemistry degree. In 1973, while still in school, she became a lab technician in gas chromatography, a position she maintained for 7 years. She continued her advancement when she became a technical correspondent for Trade Sales in the House Paints Division. In 1984, she was promoted to Styling Coordinator for the color programs for automotive paints. The next year she was made Sales Coordinator for Powder Coatings and thereafter transferred to Marketing Services for APA and then Marketing Services for Toyota. She was then promoted to Senior Technical Coordinator and then in 1995, to Color Coordinator for Mack Truck.
69. As of 2000, Ms. Austin was the Supervisor of the Color Lab in the General Industrial Business Unit, located in Springdale, Pennsylvania. She was responsible for prioritizing color development and interfacing between customers and PPG field personnel and for supervising about ten people that reported to her.
70. By that time, Ms. Austin had begun to have difficulties with her vision as a result of a severe case of Graves disease. In 2000, she had a total of seven surgeries on her eyes involving, inter alia, removal of bone behind her eyes, as well as tissue removal to save her vision and, consequently, was off work for approximately 9 months.
71. Shortly after she returned to work at PPG in early 2001, when she was 51 years old, PPG, while allowing her to keep her title, removed from her the responsibilities for supervising the ten employees in the Color Lab and gave those responsibilities to a male employee who was in his early 30’s. She was given no reason for this action.
72. In 2003, Ms. Austin developed breast cancer, and she was forced to take time off from work. After having a lumpectomy, four months of chemotherapy and four months of

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radiation, she immediately returned to work in February, 2004, having missed approximately 9 months of work.
73. When she returned to work, PPG continued to deny her the supervisory responsibilities she had previously exercised.
74. Thereafter, in May 2005, her cancer returned and she was forced to undergo a radical mastectomy, followed by 5 months of chemotherapy, which ended in October, 2005.
75. On November 1, 2005, she again returned to work. Less than three months later, in January, 2006, when she was 55 years old, PPG terminated her employment.
76. On January 23, 2006, Ms. Austin was escorted by two PPG employees into a conference room where Phil Jones, Technical Director of the Springdale facility, and John Prozenica, a Human Resources employee, were waiting for her. They told her that after 38 years of dedicated service, she was being “laid off” until July at which time she would qualify for early retirement. In effect, her employment with PPG was terminated. They commenced reading a prepared speech, which PPG has since refused to provide to Ms. Austin.
77. This information came as such a shock, that Ms. Austin nearly lost consciousness and had to be revived with smelling salts.
78. In a remarkable display of insensitivity, Messrs. Jones and Prozenica waited for Ms. Austin to “recover” and then continued the carefully-scripted termination. They told her that the reason for her termination was a “down-sizing” necessitated by the fact that the General Industrial Group hadn’t “met plan” and that it was effective immediately.
79. They then presented her with a Separation Agreement which they asked her to sign.

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80. After the meeting, they took her ID card and then had her escorted out of the building to her car. After she got into her car, Ms. Austin was too upset to drive, and sat in her car in the parking lot crying for almost two hours.
81. She ultimately signed the Separation Agreement on February 15, 2006. 82. Since her termination, Ms. Austin has tried, without success, to find another job. 83. Because she is divorced and her PPG salary was the only income in her household, she has been forced to use her PPG savings plan to fund the mortgage payments on her home since her termination. Those funds will soon be depleted, at which time she will likely lose her house. 84. Ms. Austin had specifically planned to continue working at PPG until she reached the age of 66. 85. PPG’s stated reason for Ms. Austin’s discharge—“down-sizing”—is simply a pretext to mask PPG’s age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries. 86. PPG terminated Ms. Austin before she would have been eligible for substantially greater pension benefits, and did so specifically to deprive her of those benefits. 87. Had Ms. Austin been permitted to work until her normal retirement age of 66, as she had planned, her pension and other retirement benefits would have been substantially greater than the amount she currently receives as a result of her termination. 88. At the time of her discharge, Ms. Austin was entitled to five weeks of paid vacation per year. 89. PPG treated Ms. Austin less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific

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intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
90. PPG’s conduct in terminating Ms. Austin’s employment was contrary to and in willful violation of the provisions of 29 U.S.C. §623(a), inasmuch as PPG’s decision to terminate her was based, in whole or in part, on her age.
91. Immediately after her termination, Ms. Austin’s position was given to her nominal, but younger supervisor, but within a matter of a few weeks, her responsibilities were divided among several other younger employees.
92. As a direct and proximate result of PPG’s conduct in terminating Ms. Austin’s employment on January 23, 2006, she has lost and will continue to lose the benefits of her employment with PPG, including but not limited to, salary, bonuses, vacation time, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.
Allegations Concerning Mr. Campbell 93. Mr. Campbell’s employment with PPG was terminated as of February 28, 2006. At the time, he was 61 years old and had been working for PPG for almost 13 years. 94. At the time of his termination, Mr. Campbell was a salesman in the General Industrial Business Group, working in Raleigh, North Carolina. 95. His salary when he was terminated was $75,000.00 and he was also entitled to bonuses based on his sales. 96. During his entire tenure at PPG, Mr. Campbell had consistently received excellent performance reviews. 97. In early 2006, Mr. Campbell was told by his supervisor, John Shaffer, that his performance had suddenly become unsatisfactory, that he was putting him on a performance

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improvement plan, and that if his performance did not immediately improve, he would have to put him on probation.
98. There was no objective basis to support the statement that Mr. Campbell’s performance was unsatisfactory. His performance at that time was on par with previous years, which had been deemed commendable.
99. Shortly thereafter, Mr. Shaffer suggested that Mr. Campbell consider taking a termination package being offered to him by PPG and retiring early. Mr. Shaffer said that, in light of his unsatisfactory performance review, if he decided not to retire, and if his performance improvement plan was not satisfactorily completed within 90 days, he would have no alternative but to fire him.
100. Faced with the pressure of a false inferior performance review, and the threat of being fired based on that false review, Mr. Campbell acceded to the pressure, and “retired” effective February 28, 2006.
101. The “termination package” that PPG offered and that Mr. Campbell ultimately was forced to accept contained precisely the same components as the termination benefits offered to other employees who were involuntarily terminated by PPG.
102. Immediately after his “retirement,” Mr. Campbell’s duties were assumed by an existing male employee in his early 30’s. Shortly thereafter, a newly-hired female employee, who was in her 20’s, assumed his duties.
103. PPG’s stated reason for Mr. Campbell’s termination—substandard performance—was simply a pretext to mask PPG’s age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries.

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104. PPG terminated Mr. Campbell before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.
105. Had Mr. Campbell been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.
106. At the time of his discharge, Mr. Campbell was entitled to five weeks of paid vacation per year.
107. PPG treated Mr. Campbell less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
108. PPG’s conduct in terminating Mr. Campbell was contrary to and in willful violation of the provisions of 29 U.S.C.§623(a), inasmuch as PPG’s threat of probation was based, in whole or in part, on his age.
109. As a direct and proximate result of PPG’s conduct in terminating Mr. Campbell on February 28, 2006, he has lost and will continue to lose the benefits of his employment with PPG, including, but not limited to, salary, bonuses, vacation time, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.
Allegations Concerning Mr. Hunt 110. Mr. Hunt was hired by PPG in January, 1977 in Oak Creek, Wisconsin. Twentynine years later, almost to the day, when he was 57 years old, and had spent his entire career at PPG, he was terminated.

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111. After he started at PPG, Mr. Hunt attended college at night and, in 1981 obtained his bachelors degree in chemistry and became a developmental chemist at PPG.
112. After being promoted to Liason for Automotive Group in 1984, in 1990, Mr. Hunt was transferred to Winnsboro, South Carolina, as a Service Representative for the General Industrial Group. Within a couple years, he was promoted to be Lead Service Representative in Winnsboro, supervising up to 7 people.
113. In 2002, he became a floating service representative for South Carolina. 114. In 2003, he agreed to commute to Ladson, South Carolina, where PPG had a need for someone with his background. 115. Within a year, PPG hired someone in his 30’s to perform the job Mr. Hunt had been doing in Ladson and Mr. Hunt was forced to start commuting to a PPG facility in North Carolina. 116. Then, in August, 2005, PPG told him that his services were absolutely required to start an operation in Arkansas and Oklahoma. Mr. Hunt dutifully agreed to commute from South Carolina to Arkansas and Oklahoma until this operation was up and running. His salary and bonus at the time was $72,000.00. 117. In late January, 2006, Mr. Hunt’s boss, Greg Rickard, told him that he had to promptly complete a P&LP self evaluation report and that he had to meet with him the following week at a local motel to discuss the report. When he arrived at the motel to deliver the report and meet with Greg Rickard, Mr. Hunt found, waiting for him along with Mr. Rickard, Rhett Wyman from PPG’s Human Resources Department.

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118. Notwithstanding his 29 years of continuous employment by PPG and his consistently good performance reviews, Messrs. Rickard and Wyman told Mr. Hunt that his employment with PPG was being terminated. Mr. Hunt was 57 years old at the time.
119. While they attempted to couch his termination in terms of “retirement,” it was a completely unilateral decision by PPG and was, therefore, clearly a termination.
120. This termination came as a complete surprise to Mr. Hunt and he was emotionally traumatized during the remainder of the meeting.
121. Immediately after his termination, PPG transferred a younger employee into Mr. Hunt’s position.
122. PPG terminated Mr. Hunt before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.
123. Had Mr. Hunt been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.
124. At the time of his discharge, Mr. Hunt was entitled to five weeks of paid vacation per year.
125. PPG treated Mr. Hunt less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
126. PPG’s conduct in terminating Mr. Hunt’s employment was contrary to and in willful violation of the provisions of 29 U.S.C. §623(a), inasmuch as PPG’s employment decision to terminate him was based, in whole or in part, on his age.

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127. As a direct and proximate result of PPG’s conduct in terminating Mr. Hunt’s employment, he has lost and will continue to lose the benefits of his employment with PPG, including, but not limited to, salary, bonuses, vacation time, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.
Allegations Concerning Mr. Bittner 128. Mr. Bittner’s employment with PPG was also terminated by PPG on January 31, 2006. At the time, he was 51 years old. Mr. Bittner was a Sales Services Representative in the General Industrial Business Group, and had been with PPG for 19 years. 129. PPG hired Mr. Bittner as a Technical Service Representative in Allentown, Pennsylvania in February, 1987. He remained in Allentown for about two years at which time he relocated to South Carolina because one of PPG’s clients opened a plant there. 130. In 2000, Mr. Bittner moved back to the Allentown area, because that’s where PPG then needed his services. He remained there until 2005, when he moved to North Carolina, in order to assist PPG in obtaining a new account. 131. During his entire tenure at PPG, Mr. Bittner never had any performance problems. 132. In 2005, Mr. Bittner required knee-replacement surgery. He was off work from July to December of that year. 133. During that period, he made arrangements to have a new house built and the closing took place in November, 2005. 134. In late January, 2006, Mr. Bittner’s boss, Greg Rickard, called him and asked him to meet him at a motel in Charlotte on the pretext of reviewing his P&LP self-evaluation. 135. When Mr. Bittner arrived at the motel, Rhett Wymann, from PPG Human Resources, was with Greg Rickard. Mr. Rickard read a letter to Mr. Bittner stating that his

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employment with PPG was being terminated “due to a difficult business climate.” Mr. Bittner was 52 years old at the time.
136. The only explanation given for this termination was an organizational “down-sizing.”
137. Since his termination, Mr. Bittner has unsuccessfully searched for a job and has been using his savings to make the payments on his mortgage.
138. At the time of his termination, Mr. Bittner had a salary in excess of $73,000 and was entitled to bonuses based on sales.
139. PPG terminated Mr. Bittner before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.
140. Had Mr. Bittner been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.
141. At the time of his discharge, Mr. Bittner was entitled to five weeks of paid vacation per year.
142. PPG treated Mr. Bittner less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
143. PPG’s conduct in terminating Mr. Bittner’s employment was contrary to and in willful violation of the provisions of 29 U.S.C. § 623(a), inasmuch as PPG’s employment decision to terminate him was based, in whole or in part, on his age.
144. As a direct and proximate result of PPG’s conduct in terminating Mr. Bittner’s

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employment on January 23, 2006, he has lost and will continue to lose the benefits of his employment with PPG, including, but not limited to, salary, bonuses, vacation time, holiday time insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.
COUNT I Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq 145. Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 144 above as if fully set forth herein. 146. Mr. Rupert, as a 57-year-old employee of PPG, was a member of a protected class. 147. Mr. Rupert was well-qualified for the position he held. 148. Mr. Rupert suffered an adverse employment action when his employment was terminated by PPG and he was replaced by a younger employee. That adverse employment action occurred under circumstances giving rise to an inference of age discrimination. 149. PPG’s stated justification for terminating Mr. Rupert was a pretext for willful agerelated discrimination. 150. Mr. Rupert’s age was a motivating factor in his termination. 151. By terminating his employment, PPG discriminated against Mr. Rupert in the terms and conditions of his employment on the basis of his age in violation of the ADEA, 29 U.S.C. § 621, et seq. 152. Ms. Austin, as a 55-year-old employee of PPG, was a member of a protected class. 153. Ms. Austin was well-qualified for the position she held.

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154. Ms. Austin suffered an adverse employment action when her employment was terminated by PPG and was replaced by younger employees. That adverse employment action occurred under circumstances giving rise to an inference of age discrimination.
155. PPG’s stated justification for terminating Ms. Austin was a pretext for age-related discrimination.
156. Ms. Austin’s age was a motivating factor in her termination. 157. By terminating her employment, PPG discriminated against Ms. Austin in the terms and conditions of his employment on the basis of her age in violation of the ADEA, 29 U.S.C. § 621, et seq. 158. Mr. Campbell, as a 61-year-old employee of PPG, was a member of a protected class. 159. Mr. Campbell was well-qualified for the position he held. 160. Mr. Campbell suffered an adverse employment action when he was forced to retire from PPG. That adverse employment action occurred under circumstances giving rise to an inference of age discrimination. 161. PPG’s stated justification for forcing Mr. Campbell to retire was a pretext for agerelated discrimination. 162. Mr. Campbell’s age was a motivating factor in forcing him to retire. 163. By forcing him to retire and replacing him with a younger employee, PPG discriminated against Mr. Campbell in the terms and conditions of his employment on the basis of his age in violation of the ADEA, 29 U.S.C. § 621, et seq. 164. Mr. Hunt, as a 57-year-old employee of PPG, was a member of a protected class. 165. Mr. Hunt was well-qualified for the position he held.

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166. Mr. Hunt suffered an adverse employment action when his employment was terminated by PPG. That adverse employment action occurred under circumstances giving rise to an inference of age discrimination.
167. PPG’s stated justification for terminating Mr. Hunt was a pretext for willful agerelated discrimination.
168. Mr. Hunt’s age was a motivating factor in his termination. 169. By terminating his employment and replacing him with a younger employee, PPG discriminated against Mr. Hunt in the terms and conditions of his employment on the basis of his age in violation of the ADEA, 29 U.S.C. § 621, et seq. 170. Mr. Bittner, as a 51-year-old employee of PPG, was a member of a protected class. 171. Mr. Bittner was well-qualified for the position he held. 172. Mr. Bittner suffered an adverse employment action when his employment was terminated by PPG. That adverse employment action occurred under circumstances giving rise to an inference of age discrimination. 173. PPG’s stated justification for terminating Mr. Bittner was a pretext for willful age-related discrimination. 174. By terminating his employment, PPG discriminated against Mr. Bittner in the terms and conditions of his employment on the basis of his age in violation of the ADEA, 29 U.S.C. § 621, et seq. 175. PPG has similarly discriminated against all Class Members in the terms and conditions of employment, on the basis of their age, in violation of the ADEA, 29 U.S.C. § 621, et seq.

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COUNT II Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq
176. Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 175 above as if fully set forth herein.
177. PPG has established the PPG Industries, Inc. Retirement Income Plan (“the Plan”) which is a qualifying retirement plan (“Plan”) and is covered under the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001, et seq.
178. At all relevant times, PPG has been the Plan administrator of the Plan within the meaning of ERISA, because it has been so designated in the governing plan instruments. As such, PPG is a fiduciary with respect to the Plan.
179. PPG employed Mr. Rupert on a full-time basis from 1980 through January 2006, at which time his employment with PPG was abruptly terminated without advance notice or cause. As such, Mr. Rupert is a participant under the Plan.
180. Mr. Rupert was, at the time of his unlawful termination by PPG, 57 years old. As a consequence of the unlawful and abrupt termination of his employment, Mr. Rupert now has drastically reduced eligibility for retirement benefits under the Plan.
181. At the time of the involuntary termination of his employment, Mr. Rupert was a vested participant in the Plan.
182. The Plan calculates an employee’s monthly pension benefit based upon various multipliers to be applied to the employee’s “Final Average Monthly Salary” (“FAMS”). The Plan defines FAMS as the “highest average monthly salary you received for any five consecutive years during the 10 years immediately prior to your retirement.”

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183. If PPG had permitted Mr. Rupert to retire at the age of 66, his monthly pension benefit would have been calculated based upon a higher “final average monthly salary” and his pension benefit would have been greater.
184. PPG’s discharge of Mr. Rupert was, in whole or in part, motivated by the intent to reduce his pension benefits, and by the specific intent of interfering with his attainment of the rights to which he would have become entitled under the Plan if he had been permitted to retire at age 66.
185. PPG employed Ms. Austin on a full-time basis from 1968 through January 2006, at which time her employment with PPG was abruptly terminated without advance notice or cause. As such, Ms. Austin is a participant under the Plan.
186. Ms. Austin was, at the time of her unlawful termination by PPG, 55 years old. As a consequence of the unlawful and abrupt termination of her employment, Ms. Austin now has drastically reduced eligibility for retirement benefits under the Plan.
187. At the time of her involuntary termination of employment, Ms. Austin was a vested participant in the Plan.
188. If PPG had permitted Ms. Austin to retire at the age of 66, her monthly pension benefit would have been calculated based upon a higher “final average monthly salary” and her pension benefit would have been greater.
189. PPG’s discharge of Ms. Austin was, in whole or in part, motivated by the intent to reduce her pension benefits, and by the specific intent of interfering with her attainment of the rights to which she would have become entitled under the Plan if she had been permitted to retire at age 66.

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190. PPG employed Mr. Campbell on a full-time basis from 1993 through January 2006, at which time he was forced by PPG to retire. As such, Mr. Campbell is a participant under the Plan.
191. Mr. Campbell was, at the time he was forced to retire by PPG, 61 years old. As a consequence of the unlawful and abrupt termination of his employment, Mr. Campbell now has drastically reduced eligibility for retirement benefits under the Plan.
192. At the time of his forced retirement, Mr. Campbell was a vested participant in the Plan.
193. If PPG had permitted Mr. Campbell to retire at the age of 66, his monthly pension benefit would have been calculated based upon a higher “final average monthly salary” and his pension benefit would have been greater.
194. PPG’s discharge of Mr. Campbell was, in whole or in part, motivated by the intent to reduce his pension benefits, and by the specific intent of interfering with his attainment of the rights to which he would have become entitled under the Plan if he had been permitted to retire at age 66.
195. PPG employed Mr. Hunt on a full-time basis from 1977 through January 2006, at which time his employment with PPG was abruptly terminated without advance notice or cause. As such, Mr. Hunt is a participant under the Plan.
196. Mr. Hunt was, at the time of his unlawful termination by PPG, 57 years old. As a consequence of the unlawful and abrupt termination of his employment, Mr. Hunt now has drastically reduced eligibility for retirement benefits under the Plan.
197. At the time of his involuntary termination of employment, Mr. Hunt was a vested participant in the Plan.

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198. If PPG had permitted Mr. Hunt to retire at the age of 66, his monthly pension benefit would have been calculated based upon a higher “final average monthly salary” and his pension benefit would have been greater.
199. PPG’s discharge of Mr. Hunt was, in whole or in part, motivated by the intent to reduce his pension benefits, and by the specific intent of interfering with his attainment of the rights to which he would have become entitled under the Plan if he had been permitted to retire at age 66.
200. PPG employed Mr. Bittner on a full-time basis from 1987 through January 2006, at which time his employment with PPG was abruptly terminated without advance notice or cause. As such, Mr. Bittner is a participant under the Plan.
201. Mr. Bittner was, at the time of his unlawful termination by PPG, 51 years old. As a consequence of the unlawful and abrupt termination of his employment, Mr. Bittner now has drastically reduced eligibility for retirement benefits under the Plan.
202. At the time of his involuntary termination of employment, Mr. Bittner was a vested participant in the Plan.
203. If PPG had permitted Mr. Bittner to retire at the age of 66, his monthly pension benefit would have been calculated based upon a higher “final average monthly salary” and his pension benefit would have been greater.
204. PPG’s discharge of Mr. Bittner was, in whole or in part, motivated by the intent to reduce his pension benefits, and by the specific intent of interfering with his attainment of the rights to which he would have become entitled under the Plan if he had been permitted to retire at age 66.

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205. PPG has similarly terminated the employment of other Class Members with the specific intent of eliminating or reducing their entitlement to pension benefits.
206. PPG’s actions in terminating Plaintiffs’ employment and the employment of other Class Members was in violation of and contrary to the provisions of Section 510 of ERISA, which makes it unlawful for an employer to discharge an employee “for the purpose of interfering with the attainment of any right to which such participant may become entitled under the provisions of an employee benefit plan.” 29 U.S.C. § 1140.
207. As a direct and proximate result of PPG’s conduct, Plaintiffs and all other Class Members have been deprived of their employment and all rights and benefits to be derived therefrom and has been prevented from obtaining retirement benefits to which they were entitled under the Plan.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, individually and on behalf of all ot her similarly situated Class Members, pray that this Court: a. Enter a judgment declaring this action to be a class action properly maintained
pursuant to Rule 23(a) and Rules 23(b)(1)(2) and (3) of the Federal Rules of Civil Procedure; b. Enter a judgment declaring this action to be a collective action properly maintained pursuant to 29 U.S.C. §216(b); c. Enter a judgment declaring that PPG’s conduct in terminating the employment of employees who were 40 years of age or older at the time of termination violates the ADEA; d. Enter a judgment declaring that PPG’s conduct in terminating the employment of employees who are 40 years of age or older violates Section 510 of ERISA; e. Enter an injunction against PPG’s unilateral termination of any employee over forty-years of age;

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f. Award damages to the Class for the earnings and benefits lost by Class Members resulting from the illegal termination of their employment by PPG;

g. Award liquidated damages to the Class for PPG’s willful violation of the ADEA;

h. Award reasonable attorney’s fees, costs and expenses;

i. Award pre-judgment and post-judgment interest; and

j. Award such other and further relief that this Court may deem just and proper.

JURY TRIAL DEMANDED ON ALL ISSUES SO TRIABLE

Respectfully submitted,

OBERMAYER REBMANN MAXWELL & HIPPEL LLP

Date: May 24, 2007

s/Bruce C. Fox_____________________ Bruce C. Fox, Esquire Pa. I.D. No. 42576 Rudy A. Fabian, Esquire Pa. I.D. No. 56703 One Mellon Center, Suite 5240 500 Grant Street Pittsburgh, PA 15219 (412) 566-1500 Fax: (412) 566-1508

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 2:07-cv-00705-AJS Document 13 Filed 08/07/07 Page 1 of 57

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.

)

)

PPG INDUSTRIES, INC.,

)

)

Defendant.

)

Civil Action No. 07-00705 Judge Arthur J. Schwab ELECTRONICALLY FILED
JURY TRIAL DEMANDED

FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT AND NOW come Representative Plaintiffs, Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner (collectively, the “Representative Plaintiffs”), on behalf of themselves and all others similarly situated, by and through their counsel, Obermayer Rebmann Maxwell & Hippel LLP, and file this First Amended Class and Collective Action Complaint against Defendant PPG Industries, Inc. (“PPG” or “Defendant”), pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq (“ADEA”), and the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001, et seq, and aver as follows:

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THE PARTIES 1. Plaintiff Arthur C. Rupert is an indi vidual who is currently 58 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 62 years old and resides at 1402 Basinger Court, Raleigh, NC 27612. 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, and a “person” within the meaning of 29 U.S.C. § 1140 of ERISA. 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 will likely be revealed, and

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plaintiffs will then seek leave of court to further amend this Complaint to add new parties and/or
new claims.
NATURE OF THIS ACTION AND CORE ALLEGATIONS
9. This is an action brought by the Representative Plaintiffs seeking redress on a
collective basis for systemic practices engaged in by PPG to discriminate against its older work
force in conducting Reductions-in-Force (“RIFs”) and forced retirements over an extended
period of time, which practices are continuing in nature. Plaintiffs bring this class and collective
action on behalf of themselves and all other present and former similarly situated salaried
employees (the “ADEA Class Members”) against PPG for discrimination in employment, by:
a. Adopting and employing systems for evaluation of employees in such a way as to permit highly subjective, standardless performance evaluations which allowed PPG to manipulate and distort its older workers’ records of performance in order to create a pretext for terminating older workers;
b. Secretively adopting and employing methods for evaluating, ranking and selecting employees for termination in its regular RIFs, which methods were highly subjective, unreliable, invalid, and served as mere pretext, resulting in the termination of disproportionately high numbers of older workers who were never informed of the sham clandestine criteria used to select them for termination;
c. Failing to exercise appropriate supervision or control over managers who select older workers for termination;
d. Maintaining a corporate culture which fosters and encourages pervasive ageist stereotypes and age-related animus, and which permits managers to practice age discrimination in evaluating older employees and in selecting employees for termination;

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e. Failing to establish policies to ensure compliance with the requirements of ADEA, and to guard against age discrimination, including, without limitation, policies requiring proper training of supervisory employees;

f. Willfully failing to examine or evaluate, in advance of the completion of RIFs (or at any time thereafter), whether the RIFs routinely result in the elimination of a disproportionately high number of older workers, or to otherwise employ safeguards or exercise oversight of the RIF process to prevent or mitigate such discriminatory outcomes, in violation of ADEA, as well as PPG’s own internal RIF policies;

g. Pressuring older workers to accept retirement packages which were identical to what was available to workers who were simply terminated, or forcing older workers to resign after fabricating poor performance reviews;

h. Failing and refusing to reinstate, retrain and/or relocate older employees into positions that matched their job qualifications which became available after their termination, and failing to notify them of such positions when they became available, in violation of PPG’s written policies governing employees terminated in RIFs; and

i. Extracting from employees invalid and improper waivers of claims for liability which are part of its scheme to intimidate and discriminate against older workers and attempt to prevent them from asserting valid claims under ADEA arising from their terminations.

10. The above-described policies, patterns, practices, and omissions which adversely

impact older employees constitute willful violations of ADEA. PPG arbitrarily and routinely

employs such policies and practices systematically and continuously to discriminate against

older workers and select them for termination, and replace them with younger workers, without

any credible excuse or justification.

11. Plaintiffs also bring this class and collective action on behalf of themselves and

all other present and former salaried employees similarly situated for PPG’s violations of Section

510 of ERISA, which makes it unlawful for an employer to discharge an employee “for the

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purpose of interfering with the attainment of any right to which such participant may become entitled under the provisions of an employee benefit plan” (the “ERISA Class Members,” collectively with the ADEA Class Members, referred to hereinafter simply as the “Class Members”).
JURISDICTION 12. This Court has jurisdiction over the federal question subject matter of this civil rights action pursuant to 28 U.S.C. § 1331, 29 U.S.C. § 1132(e)(1), and 29 U.S.C. § 216(b), as made applicable by 29 U.S.C. § 626(b). 13. 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. 14. Plaintiffs have complied with all conditions precedent to filing a suit under ADEA and ERISA. 15. The Representative Plaintiffs each filed charges of employment discrimination based on age against PPG with the Equal Opportunity Employment Commission (“EEOC”): Mr. Rupert filed on October 25, 2006; Ms. Austin filed on November 3, 2006; Mr. Campbell filed on November 8, 2006; Mr. Hunt filed on November 27, 2006; and Mr. Bittner filed on November 27, 2006. 16. More than 60 days have elapsed since the Representative Plaintiffs filed charges with the EEOC.

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17. Each of the Representative Plaintiffs has received a Dismissal and Notice of Rights from the EEOC. Copies of these EEOC Notices are attached hereto as Exhibit A and are incorporated by reference as though fully set forth herein.
18. The Complaint was filed within 90 days of receipt of the first Dismissal and Notice of Rights issued by the EEOC to a Representative Plaintiff.
VENUE 19. Venue is proper in the Western District of Pennsylvania pursuant to 28 U.S.C. § 1391(b) and 29 U.S.C. § 1132(e)(2), as the unlawful employment acts and practices complained of by the Plaintiffs were committed or occurred, and continue to occur, 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. 20. In addition, the unlawful employment policies and practices which are the subject of this action, were and are centrally implemented and/or controlled from PPG’s World Headquarters in this District and nation-wide, and remain in effect in this District and nationwide in continuous, systematic violation of the ADEA and ERISA. 21. Because a large number of the illegal terminations by PPG took place, and continue to take 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 nation-wide class and collective action.

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FACTUAL BACKGROUND General Allegations Regarding PPG’s Discriminatory Conduct
22. Historically, PPG had been a company that valued its employees and recognized that, because its businesses were those that depended on technical innovation, its success was tied very closely to the creativity, satisfaction and commitment of its employees. Consequently, in the past, PPG had consistently treated its employees well and it came to be thought of as the type of stable employer where an individual could spend his or her entire career.
23. In or about 1997, when Raymond LeBoeuf became PPG’s Chief Executive Officer and Chairman of the Board, PPG’s longstanding corporate philosophy of commitment to its employees began to erode. Under LeBoeuf’s leadership, PPG embarked upon an aggressive and short-sighted program of cost-cutting, “belt-tightening” and “efficiency improvement,” which was driven by Senior Management’s obsession with short-term quarterly economic projections and goals in order to increase Senior Management’s compensation and the value of their stock options.
24. One of the primary methods of cost-cutting employed by PPG was an aggressive program of RIFs. Starting at the time of LeBoeuf’s ascension, and continuing until the present, PPG has undergone hundreds of RIFs at various PPG facilities across the country in the name of cost-cutting and efficiency improvements.
25. PPG soon realized that older employees, who generally had more experience, also generally had higher salaries, and were closer to retirement, at which time their vested

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retirement benefits would become payable. PPG also realized that the continued employment of those older employees would increase those retirement benefits.
26. Under LeBoeuf’s reign, members of Senior Management of PPG instilled a corporate-wide culture and mentality which devalued the contributions of older workers, in which the older employees were perceived as “not pulling their weight,” and that an increasingly competitive business environment justified their removal and the retention of the cheaper and, allegedly, more aggressive younger employees.
27. Members of Senior Management of PPG also frequently remarked, in speeches and in communications with managers with responsibility for selecting employees for termination, that PPG was “saddled” with high pension liabilities, and suggested that it was a serious “problem,” implicitly encouraging them to find ways to eliminate or reduce benefits to high pension beneficiaries.
28. The foregoing attitudes filtered down from upper management to the ranks of middle managers, who, with the tacit, if not the express, blessing of their superiors in Senior Management and under pressure to cut costs and pension liabilities, focused their attention on eliminating older employees.
29. Managers at PPG, although schooled to avoid documenting remarks which overtly displayed ageist stereotypes, in fact harbored such attitudes, which were occasionally revealed by such statements that the older workers “were not working at the same rate” or “energy level” as younger workers, or that workers “had become too old to promote.”

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30. This legacy of age discrimination has become institutionalized throughout the company, and PPG’s decisions, policies and plans for termination of its employees have become infected by discrimination, resulting in the termination of a highly disproportionate number of older employees, whose job duties were routinely assumed by younger workers.
31. While cutting legions of older salaried workers during his nine-year tenure as CEO of PPG, Mr. LeBeouf’s salary did not lag.1 Over that time, he collected $18.1 million in salary, bonuses, and miscellaneous compensation, not including similarly exorbitant gains from his stock options, the exact value of which is presently unknown, but is projected to be as worth as much as $21.7 million in additional compensation.
32. Mechanisms which facilitated age discrimination at PPG varied, but certain practices became highly prevalent within the company, most frequently in the context of RIFs, which were conducted on a routine and systematic basis.
33. When PPG would conduct RIFs, it would simply call an older employee into a conference room and inform him that his employment with PPG was ending immediately. Typically, no explanation would be given, other than “corporate downsizing”, “reduction in force” or the elimination of the employee’s position.
34. In many cases, the employees would specifically be told that their termination had nothing to do with the quality of their work or performance.

1 However, during LeBouef’s tenure at PPG, the company’s performance did lag behind that of its competitors,

further discrediting the proffered economic justification for the policies implemented under his leadership allowing

for the systematic elimination of highly-talented and technically experienced older workers through RIF’s and other

means—policies that, aside from their illegality, are deeply questionable from a long-term economic and operational

perspective, given that PPG historically prided itself on, and excelled in its performance based upon its superior

level of innovation and the technical experience of its work-force.

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35. In no cases were the employees told the true reason for their termination--that they had in fact been selected for termination by the application of a secret and highly subjective ranking system which purported to rate their performance, discussed more fully below, which resulted in disproportionate numbers of older workers being terminated.

PPG’s Standardless and Highly Subjective Performance Evaluation System 36. In some cases, PPG would, in advance of the older employee’s termination,
engage in a concerted effort to fabricate poor performance reviews, so that it would ultimately appear that there was a justifiable basis for the termination. In these cases, it is frequently obvious, as years of favorable performance reviews are followed by an abrupt and unexplained transition to poor or average reviews.
37. PPG adopted systems for evaluation of employees’ performance in such a way as to permit highly subjective, standardless performance evaluations which allowed PPG to manipulate and distort its older workers’ records of performance in order to create a pretext for terminating those workers.
38. Under its former evaluation system—the “S.M.A.R.T.” rating system— employees were rated for performance under an objective numerical system. The “S.M.A.R.T” rating system employed readily understandable, numerical grades (1 to 3) for various relevant employment tasks, and indications of the relative importance of such tasks.
39. The “S.M.A.R.T.” numerical evaluation system was jettisoned, and was replaced by an evaluation system—the Performance and Learning Plan System (the “P&LP System”)—

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which employed non-numerical, vague and subjective rating factors that were easily susceptible to manipulation. The P&LP System permitted managers to make standardless subjective evaluations which could easily facilitate and cloak discriminatory animus.

PPG’s Highly Unreliable and Subjective Secret Ranking System for Selecting Employees for Termination in RIFs

40. As part of its RIF program, PPG adopted a secret system company-wide under

which managers were supposed to rank employees on performance and compare them with one

another, which was a complete departure from the normal performance evaluation process with

which the employees were familiar. This secret system was used to select employees for

termination in RIFs and was also highly subjective and easily susceptible to manipulation.

41. The secret ranking system was instituted by Senior Human Relations

Management of PPG in an arbitrary manner for purposes of ranking employees to determine

which employees should be terminated. The rating system was secretly employed by PPG

managers to yield RIF ranking matrices, ranking the employees in alleged decisional units for

purposes of selecting the lowest-ranking employees for termination.

42. The RIF ranking matrices were never shown or mentioned to the terminated

employees.

43. Employees who were terminated were simply told that their position was being

eliminated or that the company was restructuring, but were never told that they were selected for

termination in a performance ranking comparing them to other employees. Remarkably, neither

the existence of the RIF performance ranking system, nor their rankings, were disclosed to

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employees, even at such time as they were terminated, despite the fact that the system was used to select them for termination. Many of these employees had distinguished records of achievement under the former “S.M.A.R.T.” system, which were wholly ignored.
44. PPG’s failure to inform the terminated employees of the existence or results of the ranking system used in RIFs to effect their terminations suggests discriminatory pretext.
45. The secret ranking system included five nebulous and overly broad classifications, including such categories as “making things happen,” “working with people,” and “making sound decisions,” which collectively included over two-hundred component items. The employees were never informed of these component items nor were they given a chance to calibrate their performance accordingly.
46. PPG applied the unreliable and standardless ranking system uniformly to all types of employees and job classifications, and failed to conduct any validation studies to ensure that the system was a meaningful or reliable performance evaluation tool.
47. A validation study would have identified a distinct set of factors for each job, and weighed these factors appropriately to account for the fact that some factors may be more important than other factors (or not important at all) for certain jobs. Such a validation study was necessary to make such an elaborate and complex system reliable, as the more than 200 component factors cannot all have equal relevance and be equally applicable to employees in diverse jobs with diverse duties.
48. PPG conducted no reliability study for any of these rankings or RIF ranking matrices, and Managers at PPG were permitted to employ the secret system to develop the RIF

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matrices and terminate older employees without any controls or supervision. PPG’s clandestine ranking system used in RIFs was therefore standardless, and easily susceptible to manipulation.
49. Due to PPG’s lack of controls or supervision, in many if not all cases, there was only a single rater for all employees ranked in a given alleged decisional unit. Hence, it could not be determined whether another rater would give similar scores to employees, and how the ratings would come out with another rater.
50. Under the tenure of George Krock, PPG's long-time Director of Human Resources and Chief EEO Compliance Officer, PPG cast a blind eye to the disproportionate effect of its RIF program on older workers. Despite a written policy requiring PPG to perform a "disparate impact analysis" when a RIF occurs, PPG has never conducted proper statistical analyses of the impact of its RIF program on older workers, and has neglected to perform a valid statistical analysis for a single RIF to determine whether age was a factor in the terminations.
51. Hence, PPG’s secret and standardless system for ranking employees, coupled with its use of RIF rating matrices to select employees for termination, was inherently unreliable and invalid and, as uniformly applied by PPG, had the effect of terminating disproportionately high numbers of older employees in PPG’s regularly occurring RIFs.

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PPG’s Standardized RIF Termination Sessions 52. Statements made by PPG at the RIF termination meetings were scripted by PPG
Human Resources and were conducted in a uniform and standardized fashion. The script dictated that the employee be informed that PPG senior management had "announced plans that it may have to restructure" and that "your position has been eliminated and your employment is terminated effective today." The script omitted any mention of the clandestine evaluation and ranking process by which the employee was selected for termination.
53. According to PPG's RIF procedures, the PPG representative delivering the scripted RIF announcement was to advise the terminated employee that the decision was absolutely final, was to avoid any discussion of the fairness or propriety of the decision and was to immediately move into a discussion of the release of liability.
54. The script called for the employee to be immediately urged to execute a release of liability in exchange for receiving his or her severance and to be given a proposed release, and evaluate two complex options for severance.
55. Most employees who were subjected to this process were unable to effectively process the information regarding severance and the release urged upon them because they had just been told, in peremptory fashion, that their employment was being terminated immediately without any prior notice, many times after decades of uninterrupted service.
56. The RIF termination script conspicuously omitted any information about, or explanation of the Decisional Unit Matrix form that the employee was supposed to consider in evaluating whether or not to accept the release, as required under the Older Workers Benefit

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Protection Act, (“OWBPA”), 29 U.S.C. §626(f). Instead, the employees were handed the form at the termination meeting, along with other documents without any explanation as to its meaning or context.
57. That procedure, as addressed more fully below, is in direct violation of OWBPA, thereby invalidating and rendering void the releases. These violations of OWBPA also constitute further independent evidence of discriminatory pretext as part of PPG's standardized internal policies, practices and procedures.
58. As the closing scenes in the script, the meeting would then be hurriedly concluded, as the PPG managers were instructed to give the employee a hand-shake and then “leave the room.” The employee would next be asked by other personnel to sign a "Security Debriefing Statement," affirming that they had not stolen any PPG property, and an "Exit Checklist," verifying that the employee had surrendered his or her keys, photo identification, American Express card and like items. Once these documents were signed, the terminated employee was then to be escorted out the door by PPG security.
59. This grossly insensitive, humiliating and traumatizing RIF procedure was applied by PPG to its employees in a uniform and undeviating fashion, whether the employee had been with the company for 40 days or 40 years.

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PPG’s Additional Methods of Disposal of Older Workers 60. Aside from its well-orchestrated RIFs, PPG also employed a variety of other
methods to get rid of older workers. If the older employee happened to be near retirement age, PPG would often couch its forced termination of the employee as an offer of a “retirement package.” In fact, PPG’s former HR Director and EEO Compliance Officer, George Krock, did not consider it a violation of PPG's policies for managers to routinely inquire of older employees regarding their plans for retirement. However, the proffered “retirement package” was substantially the same as or identical to what other terminated employees were being offered.
61. If an employee hesitated at accepting such a retirement package, he or she often would, with varying degrees of subtlety, be threatened by PPG with the results of the poor performance reviews, which were largely fabricated and which were used as a lever to force retirement.
62. In cases where the older employee was not sufficiently close to retirement age to offer him a “retirement package,” and where a sufficiently damaging performance record had been fabricated, PPG would often simply pressure the employee to resign, rather than retire, thereby making the cessation of his employment appear to be the result of the employee’s decision, not PPG’s.
63. The termination of an older employee was routinely followed by the delegation of his or her work to one or more younger employees.
64. Over the years, as PPG became more sophisticated in its discriminatory practices, it learned to take steps to camouflage its unlawful conduct. As part of this scheme,

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PPG would seldom immediately hire or promote a younger person to the position held by the terminated older employee. Typically, a different job title would be used and often the position was left unfilled for a period of time, with the job responsibilities simply distributed among existing employees. After sufficient time had passed to obscure the temporal connection between the termination and a younger employee’s assumption of the position, PPG would then fill the position from which the older worker had been terminated.
65. It would also not be unusual for PPG to terminate an older employee with decades of tenure and the concomitant accrual of benefits, and then offer to hire him or her back to do the same work as a contract employee–without the benefits he or she had labored to accrue.
66. PPG’s systemic age discrimination began at or about the time Mr. LeBoeuf became CEO and has continued to the present. While PPG appears to have focused especially on its technical, scientific and research and development employees, as well as its marketing force, it appears that its systemic discriminating patterns and practices have been uniformly implemented in every corner of PPG’s organization and in every PPG location in the United States.
67. During the decade throughout which it has been methodically terminating its older employees, PPG has refined its methods and techniques so as to facially appear not to run afoul of the various federal statutes designed to protect employees from discriminatory practices, while simultaneously engaging in the very conduct those statutes exist to prevent.

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68. In fact, PPG has become extremely focused on its agenda of cost-cutting and eliminating older workers in order to meet short-term quarterly financial goals, to the detriment of the long-term competitiveness of its primary businesses.
69. PPG’s program of elimination of older workers has had disastrous consequences for the hundreds of employees who have been terminated, and the human cost has been enormous.

PPG’s Policies, Patterns and Practices Have Had a Disparate Impact on Older Workers Terminated in RIFs or Forced to Retire Early

70. In the alternative, even if PPG did not have a deliberate intent to specifically and

intentionally target older workers to be the victims of RIFs, at a minimum, PPG did not take

sufficient, if any, precautions to assure that standardless decision-making did not result in the

RIFs having a disproportionate impact on older employees.

71. PPG did not have in place any program to train its supervisory personnel to ensure

compliance with the requirements of the ADEA.

72. PPG did not have in place any effective policies governing compliance with the

requirements of ADEA generally, nor in the context of RIFs specifically.

73. PPG managers and other supervisor personnel were allowed to function in a

virtual vacuum as to the standards for prohibiting age discrimination.

74. Not only did PPG completely fail to educate its managers regarding age

discrimination, and completely fail to train them to avoid discriminating against PPG’s older

employees, but PPG also failed to establish appropriate objective selection criteria for its RIF’s,

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which would have reduced the disparate impact on older employees, and instead relied upon the clandestine RIF rating system to rank employees and select them for termination, as abovedescribed.
75. The absence of objective evaluation and ranking criteria resulted in individual RIF decisions being made subject to the whims of individual managers. Such subjective decision-making is inherently suspect, because of the ease with which it can not only foster, but also camouflage age discrimination.
76. PPG’s practice of relying on subjective and unreliable criteria in conducting its RIFs caused those RIFs to be infected by discrimination.
77. The fact that PPG took no steps to avoid age discrimination, whether in terms of education, training or the establishment of objective ranking and termination criteria, not only resulted in, but virtually assured that the impact of its RIFs would fall disproportionately on the shoulders of its older employees.

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PPG’s Wrongful Scheme to Extract Waivers of ADEA Claims and Willful Non-Compliance with OWBPA Requirements for Enforceability of Waivers

78. In furtherance of its scheme to discriminate against older workers and attempt to

prevent them from asserting valid claims arising from their terminations, PPG routinely required

terminated older workers to execute purported waivers of ADEA claims as a condition to

receiving their severance. PPG knew that most of its older employees could not afford to forgo

severance, especially when they were terminated with no notice whatsoever, and given no time

to plan for or seek out alternative employment. PPG’s policies and practices concerning the

waivers, which were uniformly applied, were further infected with an intent to discriminate

against older workers.

79. However, in attempting to extract enforceable waivers from employees and carry

out its campaign of intimidating and misinforming the employees about why they were being

terminated, PPG willfully failed to comply with both the minimum stated requirements of

OWBPA, which must be strictly interpreted, as well controlling regulations and interpretive

authority, in the following particulars:

a. The waivers were an essential element of PPG’s overall illegal scheme, consisting of patterns, practices and omissions which it has utilized to terminate older workers or force them into early retirement and prevent or discourage them from pursuing claims under ADEA, and are therefore void as a matter of law;

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b. The waivers and related material required to be submitted to employees pursuant to 29 U.S.C.§ 626(f)(1) were not knowing and voluntary, because inter alia, they were not worded in a manner calculated to be understood by the average individual, as required by 29 U.S.C. § 626(f)(1), and are in fact, confusing and misleading; accordingly, PPG cannot carry its burden under 29 U.S.C. § 626(f)(3) of establishing that the waivers were knowing and voluntary;
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c. It is PPG’s practice to avoid any oral or written explanation of the context, purpose or meaning of the waivers and required information specified under 29 U.S.C. § 626(f)(1) that is supposed to assist the employee in making an informed judgment in accepting the waiver at such time as the employee is terminated;
d. Instead, at termination, the employee is simply handed a document entitled, “Decisional Unit Information,” or “Decisional Unit Matrix” (a true and correct sample copy of one such form is attached hereto as Exhibit “B”), along with a number of other termination-related documents, which make no reference to waiver of potential age discrimination claims, and contains largely if not wholly incomprehensible data; however, PPG is aware that even relatively sophisticated employees cannot reasonably be expected to understand or reliably interpret the information supplied to them without such an explanation, since the information, standing alone, is not comprehensible in the format in which PPG supplies it;
e. The critical information concerning class units, eligibility factors, time limits, job titles and ages, which is statutorily required to be supplied to the employee under 29 U.S.C. § 626(f)(1), is submitted separately from the proposed waiver to workers who are being terminated, and is not adequately identified during the termination process as being linked to or related to the waiver; nor are the employees specifically advised that they should evaluate the information in deciding whether or not to accept the terms of the waiver;
f. PPG fails to supply terminated employees with ages, job titles or job categories and related information for earlier terminations, which were part of the terminations taking place in successive increments over time, as required pursuant to 29 C.F.R. § 1625.22(4)(vi);
g. PPG does not properly and correctly identify the proper decisional units and related information that must be disclosed; rather, the decisional units are manipulated to conceal discriminatory treatment of older workers, or the information relating to job titles, ages, job classifications, is misstated or improperly presented in various ways, including the following:
(i) PPG defined overly broad decisional units in certain cases, in order to disguise smaller sub-units of discrimination. PPG sometimes presented very small decisional units-to mask discrimination because it is much more difficult to perceive discrimination-when
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only very small numbers are involved. Thus, the information it provided to terminated employees was under-inclusive in some respects and over-inclusive in others;
(ii) When convenient to hide age discrimination, PPG would define its decisional units based on geographic criteria;
(iii) When it served PPG’s goal of camouflaging age discrimination, PPG would define its decisional units on a facility-by-facility basis;
(iv) To suit its interests, PPG would also–for purposes of its disclosure to terminated employees–combine RIFs that were really discrete or would separate actual force reductions into multiple, fictitious RIFs, and omit to identify the actual decisional units.
h. The releases were also wholly improper, void and unenforceable under OWBPA because they purport to permit PPG to recover attorneys’ fees and litigation costs in the event that a terminated employee seeks to commence an action under ADEA, which is prohibited by 29 C.F.R. § 1625.23(b);
i. The releases are also wholly improper, void and unenforceable under OWBPA because PPG fails to identify the actual factors and methodology used by it to decide who was subject to the termination, as described above; rather, PPG utilizes a clandestine evaluation system for RIFs, the whole existence of which it willfully conceals from employees who are terminated in order to secretively rank them against each other;
j. PPG’s form release agreement confusingly provides both that: “Employee….explicitly waives the right to recover damages or other relief in any claim…alleging discrimination brought… through the Equal employment Opportunity Commission (‘EEOC’)” and that “Employee also understands that he/she does not waive the right to file a charge with the EEOC…”; such self-contradictory language creates further impediments to clarity of interpretation of the releases by employees and runs afoul of 29 U.S.C. § 626(f)(4), providing that “[n]o waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission”;
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k. PPG’s form release agreement contains a covenant-not-to-sue, in addition to a waiver of claims, which, because they have the same legal effect, creates confusion, and automatically heightens the prospect of misunderstanding by the terminated employee, which has been found by the courts to further violate OWBPA.
80. The OWBPA requirements were intended by Congress to ensure that older employees are provided with information necessary to evaluate any potential ADEA claims before deciding to release them. PPG’s conduct, as above-described, has utterly thwarted that purpose.
81. PPG’s multiple and willful failures to comply with OWBPA and governing authority and regulations render the waivers by Members of the collective action void, invalid and unenforceable.
82. PPG’s uniform patterns, practices and omissions regarding the waivers, and information required to be supplied to employees pursuant to OWBPA, further evidence PPG’s discriminatory conduct and intent to discriminate against older workers in violation of ADEA.

Allegations Concerning Mr. Rupert

83. Mr. Rupert was born on October 26, 1948 and is presently 58 years of age.

84. Mr. Rupert was first employed by PPG in 1980. From 1980 until 1986, he was

employed in the operations planning department. In 1986, he was promoted to the position of

Industrial Sales Service Manager – Aluminum Extrusions.

85. In 1987, he joined the Springdale General Industrial Regular Office as an

Industrial Sales Coordinator. After having been promoted to Sales Service Supervisor, Mr.

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Rupert’s most recent position was Manager of Liquid Pricing and Quotations, in the General Industrial Business Unit located in Springdale, Pennsylvania.
86. In that position, he was in charge of pricing new products in the General Industrial product line, for setting corporate profit guidelines on these products, which numbered between 6,000 and 7,000, and for generating formal quotations.
87. During his final year of employment with PPG, Mr. Rupert typically worked between 48 and 55 hours per week.
88. Mr. Rupert's performance was acknowledged by PPG and he consistently received good reviews of his work.
89. During his tenure at PPG, Mr. Rupert was regularly commended by customers of PPG for his efforts on their behalf.
90. During the entire time that he worked for PPG, Mr. Rupert was repeatedly recognized for the quality of his work and the effort and dedication that he brought to his job. He was nominated for quality recognition awards, was commended for efforts that were “a true example of what teamwork and support really is.” He was recognized for his efforts in generating new business, for his “dedication and commitment to servicing [PPG’s] customers.” PPG realized that “the Industrial Coatings business ha[d] been successful… because of contributions like yours,” and that “[c]ontributions like this are at the heart of [PPG’s] success in C&R Industrial Coatings.”
91. Throughout his uninterrupted twenty-six year career with PPG, Mr. Rupert was a hard-working, efficient, conscientious, and highly motivated employee.

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92. Representative Plaintiff Rupert was fifty-seven years of age as of January 23, 2006.
93. On January 23, 2006, Gerald Dooley, who had been one of Mr. Rupert's supervisors for approximately one month, unexpectedly called him into a conference room where John Prazenica, a PPG Human Resources Director, informed him that his position was being eliminated “due to corporate down-sizing,” after twenty-six years of continuous employment with PPG. Mr. Dooley left the room almost immediately.
94. Mr. Prazenica offered no reason for Mr. Rupert’s termination, other than the alleged “downsizing.” Mr. Rupert was not informed that he had been evaluated, ranked and selected for termination based upon a clandestine ranking system. However, he did tell Mr. Rupert that he had to vacate his office, immediately.
95. During this meeting, Mr. Rupert was given a document titled “Decisional Unit Information.” There was no explanation of this document offered and it was facially incomprehensible.
96. Mr. Rupert was permitted by PPG to briefly return to his office—but only under escort—to pick up his personal possessions.
97. PPG’s stated reason for Mr. Rupert’s discharge—“downsizing”—is simply a pretext to mask PPG’s age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries.
98. Immediately after his termination, PPG transferred a younger employee into Mr. Rupert’s position. When Mr. Rupert had returned to his office to collect his personal belongings,

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this individual had come into the office with and said “I just want you to know how bad I feel. They just told me I have to do your job. I don’t want to do your job. I don’t know how to do your job.” Two weeks later, this individual resigned.
99. PPG terminated Mr. Rupert before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.
100. Had Mr. Rupert been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.
101. PPG treated Mr. Rupert less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
102. PPG’s conduct in terminating Mr. Rupert was contrary to and in willful violation of the provisions of 29 U.S.C.§623(a), inasmuch as it was based in whole or in part, on his age.
103. In the alternative, Mr. Rupert’s termination was the direct result of PPG’s policies, practices and omissions, as above-described, which have disparate impact on older employees, including without limitation, its subjective and standardless evaluation practices, and use of unreliable and invalid RIF ranking matrices, failure to establish ADEA compliance policies and training programs, and failure to properly credit the employees’ historical performance and length of tenure with the company.

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104. Even if PPG’s RIF policies were not specifically intended to discriminate on the basis of the age of discharged employees, Mr. Rupert’s termination is an example of the disparate impact of those policies on older employees.
105. As a direct and proximate result of PPG’s conduct in terminating Mr. Rupert, he has lost and will continue to lose the benefits of his employment with PPG, including, but not limited to, salary, bonuses, vacation pay, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.
Allegations Concerning Ms. Austin 106. Ms. Austin was originally hired by PPG to work in the mail room when she was
just 18 years old. She spent the next 38 years—the entirety of her working career—at PPG. During that time, she never received a bad performance review, and in 1998 and 1999 received performance bonuses.
107. After her start in the mail room, she became a receptionist and then a clerk in the accounting department. After becoming a secretary, she started night school working towards a chemistry degree. In 1973, while still in school, she became a lab technician in gas chromatography, a position she maintained for 7 years. She continued her advancement when she became a technical correspondent for Trade Sales in the House Paints Division. In 1984, she was promoted to Styling Coordinator for the color programs for automotive paints. The next year she was made Sales Coordinator for Powder Coatings and thereafter transferred to

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Marketing Services for APA and then Marketing Services for Toyota. She was then promoted to Senior Technical Coordinator and then in 1995, to Color Coordinator for Mack Truck.
108. As of 2000, Ms. Austin was the Supervisor of the Color Lab in the General Industrial Business Unit, located in Springdale, Pennsylvania. She was responsible for prioritizing color development and interfacing between customers and PPG field personnel and for supervising about ten people that reported to her.
109. By that time, Ms. Austin had begun to have difficulties with her vision as a result of a severe case of Graves disease. In 2000, she had a total of seven surgeries on her eyes involving, inter alia, removal of bone behind her eyes, as well as tissue removal to save her vision and, consequently, was off work for approximately 9 months.
110. Shortly after she returned to work at PPG in early 2001, when she was 51 years old, PPG, while allowing her to keep her title, removed from her the responsibilities for supervising the ten employees in the Color Lab and gave those responsibilities to a male employee who was in his early 30’s. She was given no reason for this action.
111. In 2003, Ms. Austin developed breast cancer, and she was forced to take time off from work. After having a lumpectomy, four months of chemotherapy and four months of radiation, she immediately returned to work in February, 2004, having missed approximately 9 months of work.
112. When she returned to work, PPG continued to deny her the supervisory responsibilities she had previously exercised.

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113. Thereafter, in May 2005, her cancer returned and she was forced to undergo a radical mastectomy, followed by 5 months of chemotherapy, which ended in October, 2005.
114. On November 1, 2005, she again returned to work. Less than three months later, in January, 2006, when she was 55 years old, PPG terminated her employment.
115. On January 23, 2006, Ms. Austin was escorted by two PPG employees into a conference room where Phil Jones, Technical Director of the Springdale facility, and John Prazenica, a Human Resources employee, were waiting for her. They told her that after 38 years of dedicated service, she was being “laid off” until July at which time she would qualify for early retirement. In effect, her employment with PPG was terminated. They commenced reading PPG’s prepared script, which PPG has since refused to provide to Ms. Austin. Ms. Austin was not informed that she had been evaluated, ranked and selected for termination based upon a clandestine ranking system.
116. This information came as such a shock, that Ms. Austin nearly lost consciousness and had to be revived with smelling salts.
117. In a remarkable display of insensitivity, Messrs. Jones and Prazenica waited for Ms. Austin to “recover” and then continued the carefully-scripted termination. They told her that the reason for her termination was a “down-sizing” necessitated by the fact that the General Industrial Group hadn’t “met plan” and that it was effective immediately.
118. They then presented her with a Separation Agreement which they asked her to sign.

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119. During this meeting, Ms. Austin was also given a document titled “Decisional Unit Information.” There was no explanation of this document offered and it was facially incomprehensible.
120. After the meeting, they took her ID card and then had her escorted out of the building to her car. After she got into her car, Ms. Austin was too upset to drive, and sat in her car in the parking lot crying for almost two hours.
121. Since her termination, Ms. Austin has tried, without success, to find another job. 122. Because she is divorced and her PPG salary was the only income in her household, she has been forced to use her PPG savings plan to fund the mortgage payments on her home since her termination. Those funds will soon be depleted, at which time she will likely lose her house. 123. Ms. Austin had specifically planned to continue working at PPG until she reached the age of 66. 124. PPG’s stated reason for Ms. Austin’s discharge—“down-sizing”—is simply a pretext to mask PPG’s age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries. 125. PPG terminated Ms. Austin before she would have been eligible for substantially greater pension benefits, and did so specifically to deprive her of those benefits. Had Ms. Austin been permitted to work until her normal retirement age of 66, as she had planned, her pension and other retirement benefits would have been substantially greater than the amount she currently receives as a result of her termination.

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126. PPG treated Ms. Austin less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
127. PPG’s conduct in terminating Ms. Austin’s employment was contrary to and in willful violation of the provisions of 29 U.S.C. §623(a), inasmuch as PPG’s decision to terminate her was based, in whole or in part, on her age.
128. Immediately after her termination, Ms. Austin’s position was given to her nominal, but younger supervisor, but within a matter of a few weeks, her responsibilities were divided among several other younger employees.
129. In the alternative, Ms. Austin’s termination was the direct result of PPG’s policies, practices and omissions, as above-described, which have disparate impact on older employees, including without limitation, its subjective and standardless evaluation practices, and use of unreliable and invalid RIF ranking matrices, and failure to establish ADEA compliance policies and training programs, and failure to properly credit the employees’ historical performance and length of tenure with the company.
130. Even if PPG’s RIF policies were not specifically intended to discriminate on the basis of the age of discharged employees, Ms. Austin’s termination is an example of the disparate impact of those policies on older employees.
131. As a direct and proximate result of PPG’s conduct in terminating Ms. Austin’s employment on January 23, 2006, she has lost and will continue to lose the benefits of her

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employment with PPG, including but not limited to, salary, bonuses, vacation pay, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.

Allegations Concerning Mr. Campbell 132. Mr. Campbell’s employment with PPG was terminated as of February 28, 2006.
At the time, he was 61 years old and had been working for PPG for almost 13 years. 133. At the time of his termination, Mr. Campbell was a salesman in the General
Industrial Business Group, working in Raleigh, North Carolina. 134. His salary when he was terminated was $75,000.00 and he was also entitled to
bonuses based on his sales. 135. During his entire tenure at PPG, Mr. Campbell had consistently received excellent
performance reviews. 136. In early 2006, Mr. Campbell was told by his supervisor, John Shaffer, that his
performance had suddenly become unsatisfactory, that he was putting him on a performance improvement plan, and that if his performance did not immediately improve, he would have to put him on probation.
137. There was no objective basis to support the statement that Mr. Campbell’s performance was unsatisfactory. His performance at that time was on par with previous years, which had been deemed commendable.
138. Shortly thereafter, Mr. Shaffer suggested that Mr. Campbell consider retiring early and taking a termination package being offered to him by PPG. Mr. Shaffer said that, in

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light of his unsatisfactory performance review, if he decided not to retire, and if his performance improvement plan was not satisfactorily completed within 90 days, he would have no alternative but to fire him.
139. Faced with the pressure of a false inferior performance review, and the threat of being fired based on that false review, Mr. Campbell acceded to the pressure, and “retired” effective February 28, 2006.
140. The “termination package” that PPG offered, and that Mr. Campbell ultimately was forced to accept, contained precisely the same components as the termination benefits offered to other employees who were involuntarily terminated by PPG.
141. Immediately after his “retirement,” Mr. Campbell’s duties were assumed by an existing male employee in his early 30’s. Shortly thereafter, a newly-hired female employee, who was in her 20’s, assumed his duties.
142. PPG’s stated reason for Mr. Campbell’s termination—substandard performance— was simply a pretext to mask PPG’s age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries.
143. PPG terminated Mr. Campbell before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.
144. Had Mr. Campbell been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.

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145. PPG treated Mr. Campbell less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
146. PPG’s conduct in terminating Mr. Campbell was contrary to and in willful violation of the provisions of 29 U.S.C.§623(a), inasmuch as PPG’s threat of probation was based, in whole or in part, on his age.
147. In the alternative, Mr. Campbell’s termination was the direct result of PPG’s policies, practices and omissions, as above-described, which have disparate impact on older employees, including without limitation, its subjective and standardless evaluation practices, and failure to establish ADEA compliance policies and training programs, and failure to properly credit the employees’ historical performance and length of tenure with the company.
148. Even if PPG’s policies, patterns and practices, were not specifically intended to discriminate on the basis of the age of discharged employees, Mr. Campbell’s termination is an example of the disparate impact of those policies on older employees.
149. As a direct and proximate result of PPG’s conduct in terminating Mr. Campbell on February 28, 2006, he has lost and will continue to lose the benefits of his employment with PPG, including, but not limited to, salary, bonuses, vacation pay, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.

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Allegations Concerning Mr. Hunt 150. Mr. Hunt was hired by PPG in January, 1977, in Oak Creek, Wisconsin. Twenty-
nine years later, almost to the day, when he was 57 years old, and had spent his entire career at PPG, he was terminated.
151. After he started at PPG, Mr. Hunt attended college at night and, in 1981 obtained his bachelors degree in chemistry and became a developmental chemist at PPG. After being promoted to Liaison for the Automotive Group in 1984, in 1990, Mr. Hunt was transferred to Winnsboro, South Carolina, as a Service Representative for the General Industrial Group. Within a couple years, he was promoted to Lead Service Representative in Winnsboro, supervising up to seven people.
152. In 2002, he became a floating service representative for South Carolina. 153. In 2003, he agreed to commute to Ladson, South Carolina, where PPG had a need for someone with his background. 154. Within a year, PPG hired someone in his thirties to perform the job Mr. Hunt had been doing in Ladson and Mr. Hunt was forced to start commuting to a PPG facility in North Carolina. 155. Then, in August, 2005, PPG told him that his services were absolutely required to start an operation in Arkansas and Oklahoma. Mr. Hunt dutifully agreed to commute from South Carolina to Arkansas and Oklahoma until this operation was up and running. His salary and bonus at the time was $72,000.00.

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156. In late January, 2006, Mr. Hunt’s boss, Greg Rickard, told him that he had to promptly complete a P&LP self evaluation report and that he had to meet with him the following week at a local motel to discuss the report. When he arrived at the motel to deliver the report and meet with Greg Rickard, Mr. Hunt found, waiting for him along with Mr. Rickard, Rhett Wyman from PPG’s Human Resources Department.
157. Notwithstanding his 29 years of continuous employment by PPG and his consistently good performance reviews, Messrs. Rickard and Wyman told Mr. Hunt that his employment with PPG was being terminated. Mr. Hunt was 57 years old at the time.
158. While they attempted to couch his termination in terms of “retirement,” it was a completely unilateral decision by PPG and was, therefore, clearly a termination. Mr. Hunt was not informed that he had been evaluated, ranked and selected for termination based upon a clandestine ranking system.
159. During this meeting, Mr. Hunt was given a document titled “Decisional Unit Information.” There was no explanation of this document offered and it was facially incomprehensible.
160. This termination came as a complete surprise to Mr. Hunt and he was emotionally traumatized during the remainder of the meeting.
161. Immediately after his termination, PPG transferred a younger employee into Mr. Hunt’s position.
162. PPG terminated Mr. Hunt before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.

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163. Had Mr. Hunt been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.
164. PPG treated Mr. Hunt less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.
165. PPG’s conduct in terminating Mr. Hunt’s employment was contrary to and in willful violation of the provisions of 29 U.S.C. §623(a), inasmuch as PPG’s employment decision to terminate him was based, in whole or in part, on his age.
166. In the alternative, Mr. Hunt’s termination was the direct result of PPG’s policies, practices and omissions, as above-described, which have disparate impact on older employees, including without limitation, its subjective and standardless evaluation practices, and use of unreliable and invalid RIF ranking matrices, and failure to establish ADEA compliance policies and training programs, and failure to properly credit the employees’ historical performance and length of tenure with the company.
167. Even if PPG’s policies, patterns and practices were not specifically intended to discriminate on the basis of the age of discharged employees, Mr. Hunt’s termination is an example of the disparate impact of those policies on older employees.
168. As a direct and proximate result of PPG’s conduct in terminating Mr. Hunt’s employment, he has lost and will continue to lose the benefits of his employment with PPG,

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including, but not limited to, salary, bonuses, vacation pay, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.

Allegations Concerning Mr. Bittner

169. Mr. Bittner’s employment with PPG was also terminated by PPG on January 31,

2006. At the time, he was 51 years old. Mr. Bittner was a Sales Services Representative in the

General Industrial Business Group, and had been with PPG for 19 years.

170. PPG hired Mr. Bittner as a Technical Service Representative in Allentown,

Pennsylvania, in February, 1987. He remained in Allentown for about two years at which time

he relocated to South Carolina because one of PPG’s clients opened a plant there.

171. In 2000, Mr. Bittner moved back to the Allentown area, because that is where

PPG then needed his services. He remained there until 2005, when he moved to North Carolina,

in order to assist PPG in obtaining a new account.

172. During his entire tenure at PPG, Mr. Bittner never had any performance problems.

173. In 2005, Mr. Bittner required knee-replacement surgery. He was off work from

July to December of that year.

174. During that period, he made arrangements to have a new house built and the

closing took place in November, 2005.

175. In late January, 2006, Mr. Bittner’s boss, Greg Rickard, called him and asked him

to meet him at a motel in Charlotte on the pretext of reviewing his P&LP self-evaluation.

176. When Mr. Bittner arrived at the motel, Rhett Wymann, from PPG Human

Resources, was with Greg Rickard. Mr. Rickard read a letter to Mr. Bittner stating that his

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employment with PPG was being terminated “due to a difficult business climate.” Mr. Bittner was 52 years old at the time. Mr. Bittner was not informed that he had been evaluated, ranked and selected for termination based upon a clandestine ranking system.
177. During this meeting, Mr. Bittner was given a document titled “Decisional Unit Information.” There was no explanation of this document offered and it was facially incomprehensible.
178. Since his termination, Mr. Bittner has unsuccessfully searched for a job and has been using his savings to make the payments on his mortgage.
179. At the time of his termination, Mr. Bittner had a salary in excess of $73,000 and was entitled to bonuses based on sales.
180. PPG terminated Mr. Bittner before he would have been eligible for substantially greater pension benefits, and did so specifically to deprive him of those benefits.
181. Had Mr. Bittner been permitted to work until his normal retirement age of 66, his pension and other retirement benefits would have been substantially greater than the amount he currently receives as a result of his termination.
182. PPG treated Mr. Bittner less favorably than similarly situated younger and less experienced employees, and its conduct was motivated by age-related animus and a specific intent to eliminate or reduce benefits to high pension beneficiaries in violation of 29 U.S.C. §1140.

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183. PPG’s conduct in terminating Mr. Bittner’s employment was contrary to and in willful violation of the provisions of 29 U.S.C. § 623(a), inasmuch as PPG’s employment decision to terminate him was based, in whole or in part, on his age.
184. In the alternative, Mr. Bittner’s termination was the direct result of PPG’s policies, practices and omissions, as above-described, which have disparate impact on older employees, including without limitation, its subjective and standardless evaluation practices, and use of unreliable and invalid RIF ranking matrices, and failure to establish ADEA compliance policies and training programs, and failure to properly credit the employees’ historical performance and length of tenure with the company.
185. Even if PPG’s policies, patterns and practices were not specifically intended to discriminate on the basis of the age of discharged employees, Mr. Bittner’s termination is an example of the disparate impact of those policies on older employees.
186. As a direct and proximate result of PPG’s conduct in terminating Mr. Bittner’s employment on January 23, 2006, he has lost and will continue to lose the benefits of his employment with PPG, including, but not limited to, salary, bonuses, vacation pay, holiday time, insurance benefits, and pension benefits in violation of 29 U.S.C. §1140.

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CLASS AND COLLECTIVE ACTION ALLEGATIONS 187. The Representative Plaintiffs bring this action as a class action pursuant to Federal Rules of Civil Procedure 23(a), and 23(b)(1), (2) and (3), and as a collective action under ADEA pursuant to the Fair Labor Standards Act, (“FLSA”) 29 U.S.C. § 216(b). Although the factual predicate underlying both the ERISA class action and the ADEA collective action is substantially the same, the standards and procedures for class actions and collective actions differ. Thus, the two procedures will be addressed separately in the following paragraphs.

Class Action Under ERISA 188. The Representative Plaintiffs have instituted this ERISA action against PPG for
PPG’s violation of Section 510 of ERISA, which makes it unlawful for an employer to discharge an employee “for the purpose of interfering with the attainment of any right to which such participant may become entitled under the provisions of an employee benefit plan.”
189. Through the implementation, application and continuation of PPG’s unlawful employment practices, as previously described herein, including without limitation, the application of PPG’s standardless performance evaluation system and its secretive utilization of RIF procedures and employee ranking systems, resulting in sham RIF “ranking matrices” used to select employees for termination, thereby cutting off and/or otherwise interfering with the rights and benefits of current and former PPG employees over the age of 40.
190. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Representative Plaintiffs bring this ERISA claim on behalf of themselves and all former salaried employees of

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PPG whose employment with PPG within the United States was terminated by PPG or who were

pressured by PPG to resign or retire and who were at least 40 years of age at the time of such

termination, resignation or retirement; and all present salaried employees of PPG who are at least

40 years of age who are at risk of being terminated by PPG as a consequence of the application

of PPG’s unlawful employment practices (the “ERISA Class Members”).

191. Numerosity - The ERISA Class Members are so numerous as to make it

impractical to bring all eligible members of the class before the Court. Based on PPG’s

pervasive practice of ridding itself of older employees, the Representative Plaintiffs believe that

there are at least hundreds of Class Members located throughout the United States. In many

instances, the affected ERISA Class Members are unaware that they may have viable claims

against PPG. The exact number and identity of the ERISA Class Members is properly

determined through discovery.

192. Commonality - There is a well-defined community of interest in the questions

of law and fact involved in this case. Multiple common questions of law and fact that affect the

rights of each ERISA Class Member, include, but are not limited to the following:

a. Whether PPG’s policies, practices, procedures, acts and omissions violated ERISA;

b. Whether Defendant owed duties to Class Members and the nature of the duties owed;

c. Whether the Representative Plaintiffs and the ERISA Class Members have sustained injury by reason of PPG’s acts and omissions;

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d. Whether the termination of an ERISA Class Member’s employment by PPG interfered with his or her attainment of a pension benefit or a greater pension benefit;
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193. Typicality - The Representative Plaintiffs’ claims are typical of the claims of the

ERISA Class, arising from the illegal termination by PPG of their employment, or the ongoing

and prospective threat of termination. The Representative Plaintiffs and the ERISA Class

Members suffered, or are at risk of suffering, similar harm as a result of PPG’s unlawful and

continuing policies, practices and omissions. Absent a class action, ERISA Class Members may

not receive appropriate relief and will continue to suffer losses, and the violations of the law

alleged herein will not be redressed. PPG has acted or refused to act on grounds generally

applicable to the ERISA Class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with the respect to the ERISA Class as a whole.

194. Adequacy of Representation – Representative Plaintiffs will assure the fair and

adequate representation of all ERISA Class Members, and have no conflict with other ERISA

Class Members in the maintenance of this action. Their interests in this action are antagonistic to

the interests of PPG and they are committed to pursuing this action to successful conclusion.

The Representative Plaintiffs are aware that they cannot settle this action without Court approval

and will vigorously pursue the class and collective claims throughout the course of this litigation.

The Representative Plaintiffs will also assure the fair and adequate representation of the ERISA

Class by their retention of attorneys who are experienced in class actions. Counsel for the

Representative Plaintiffs has agreed to pay all reasonable costs in this case contingent upon the

outcome of this case.

195. A class action is a superior method to adjudicate this controversy, because the

claims of the ERISA Class Members have a commonality of interests, as they raise the same

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questions of law and require the same kind of proof. The common questions of law and fact clearly predominate over individual issues and facts.
196. A class action is a superior method to adjudicate this controversy, because the claims of the ERISA Class Members have a commonality of interests, as they raise the same questions of law and require the same kind of proof. The common questions of law and fact clearly predominate over individual issues and facts.
197. Because many of the individual claims would be too small to justify individual actions by ERISA Class Members, most ERISA Class Members are unlikely to have any interest in individually controlling the prosecution of this case. Indeed, the likelihood that individual ERISA Class Members will prosecute separate actions is remote due to the time and expense necessary to conduct such litigation. To the extent that certain individuals do desire to control the litigation, they can opt out of the Rule 23 Class.
198. The Representative Plaintiffs believe and therefore aver that there are no unusual legal or factual issues which would create manageability problems, and the Representative Plaintiffs’ counsel anticipate no difficulty in the management of this case as a class or collective action.

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Collective Action Under ADEA 199. The Representative Plaintiffs have instituted claims for disparate treatment and
disparate impact pursuant to ADEA arising out of the previously described systemic practices engaged in by PPG to discriminate against its older work force in conducting RIFs and forced retirements, which practices and policies have been in place for approximately a decade and have been consistently and continuously applied by PPG since their inception and remain in force to date.
200. Pursuant to Section 216(b) of the FLSA, the Representative Plaintiffs bring this ADEA claim on behalf of themselves and all former salaried employees of PPG whose employment with PPG within the United States was terminated by PPG or who were pressured by PPG to resign or retire and who were at least 40 years of age at the time of such termination, resignation or retirement; and all present salaried employees of PPG who are at least 40 years of age who are at risk of being terminated by PPG as a consequence of the application of PPG’s unlawful employment practices (the “ADEA Class Members”).
201. The Representative Plaintiffs and the ADEA Class Members are similarly situated in that they have either been the victims of, or, by virtue of PPG’s continued application of the challenged policies, practices and procedures, are at risk of becoming the victims of PPG’s discriminatory conduct because PPG has violated ADEA by:
a. Adopting and employing systems for evaluation of employees in such a way as to permit highly subjective, standardless performance evaluations which allowed PPG to manipulate and distort its older workers’ records of performance in order to create a pretext for terminating older workers;

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b. Secretively adopting and employing methods for evaluating, ranking and selecting employees for termination in its regular RIFs, which methods were highly subjective, unreliable, invalid, and served as mere pretext, resulting in the termination of disproportionately high numbers of older workers who were never informed of the sham criteria used to select them for termination;
c. Failing to exercise appropriate supervision or control over managers who select older workers for termination;
d. Maintaining a corporate culture which fosters and encourages pervasive ageist stereotypes and age-related animus, and which permits managers to practice age discrimination in evaluating older employees and in selecting employees for termination;
e. Failing to establish policies to ensure compliance with the requirements of ADEA, and to guard against age discrimination, including, without limitation, policies requiring proper training of supervisory employees;
f. Willfully failing to examine or evaluate in advance of the completion of RIFs (or at any time thereafter), to determine whether the RIFs routinely result in the elimination of a disproportionately high number of older workers, or to otherwise employ safeguards or exercise oversight of the RIF process to prevent or mitigate such discriminatory outcomes, in violation of ADEA as well as PPG’s own internal RIF policies;
g. Pressuring older workers to accept retirement packages which were identical to what was available to workers who were simply terminated, or forcing older workers to resign after fabricating poor performance reviews;
h. Failing and refusing to reinstate, retrain and/or relocate older employees into positions that matched their job qualifications which became available after their termination, and failing to notify them of such positions when they became available, in violation of PPG’s written policies governing employees terminated in RIFs; and
i. Extracting from employees waivers of claims for liability which are invalid and improper under OWBPA as part of PPG’s scheme to intimidate and discriminate against older workers and attempt to prevent them from asserting valid claims under ADEA arising from their terminations. 46

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202. Under Section 216(b), ADEA Class Members must specifically opt-in to this collective action in order to be benefited or bound by the outcome. Thus, this Court need not make any inquiries beyond whether the Representative Plaintiffs and the ADEA Class Members are similarly situated.
COUNT I Disparate Treatment Under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq 203. Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 202 above as if fully set forth herein. 204. Each of the Representative Plaintiffs were members of a protected class at the time of their termination, ranging in age from 51 to 65. 205. Each of the Representative Plaintiffs were well-qualified for their positions with PPG and had a demonstrated and well-established record of success with the company prior to their terminations. 206. Each of the Representative plaintiffs suffered an adverse employment action when their employment was terminated by PPG (or in the case of Mr. Campbell, when he was forced into early retirement) and they were replaced by a younger employee. That adverse employment action occurred in each case under circumstances giving rise to an inference of age discrimination.

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207. PPG’s stated justifications for terminating the Representative Plaintiffs (and, in the case of Mr. Campbell, forcing him into early retirement) was a pretext for willful age-related discrimination.
208. The Representative Plaintiffs’ ages were a motivating factor in their termination. 209. By terminating their employment (and in the case of Mr. Campbell, forcing him into early retirement), PPG discriminated against the Representative Plaintiffs in the terms and conditions of their employment on the basis of their ages, in violation of the ADEA, 29 U.S.C. § 621, et seq. 210. PPG has similarly discriminated against all ADEA Class Members in the terms and conditions of employment, on the basis of their age, in violation of ADEA. 211. As a consequence of the unlawful policy, pattern and practice, and unlawful conduct of PPG as described herein, Representative Plaintiffs and ADEA Class Members have suffered damages in the form of lost compensation and seek front-pay and back pay, attorneys’ fees and costs, declaratory and injunctive relief, lost pension benefits and punitive damages.
COUNT II Disparate Impact Under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. 212. Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 211 above as if fully set forth herein. 213. The Representative Plaintiffs are members of a protected class.

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214. Each of the Representative Plaintiffs is well-qualified for their positions with PPG and had a demonstrated and well-established record of success with the company prior to their terminations.
215. Each of the Representative plaintiffs suffered an adverse employment action when his or her employment was terminated by PPG (or in the case of Mr. Campbell, when he was forced into early retirement) and they were replaced by a younger employee. That adverse employment action occurred in each case under circumstances giving rise to an inference of age discrimination.
216. The Representative Plaintiffs’ ages were a motivating factor in their termination. 217. By terminating their employment (and in the case of Mr. Campbell, forcing him into early retirement), PPG discriminated against the Representative Plaintiffs in the terms and conditions of their employment on the basis of their ages, in violation of the ADEA, 29 U.S.C. § 621, et seq. 218. Even if PPG’s above-described policies and practices have been facially neutral as to the age of discharged employees, they nonetheless have had a disparate impact on older employees. Even if its RIF and evaluation policies and practices were facially neutral, PPG has, in practice, favored younger employees and targeted older ones in deciding who would be terminated. 219. These practices include PPG’s subjective and standardless evaluation practices, and secretive and inherently unfair use of undisclosed, unreliable and invalid RIF ranking

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matrices, failure to establish ADEA compliance policies and training programs, and failure to properly credit the employees’ historical performance and length of tenure with the company.
220. PPG has similarly terminated the employment of all other ADEA Class Members who are former employees in like fashion upon the basis of their age. PPG has engaged in the above-described patterns, practices and omissions that have had a disparate impact on the ADEA Class Members on the basis of their ages and which have resulted in their terminations or early retirements.
221. PPG’s actions in terminating the Representative Plaintiffs’ employment and the employment of other ADEA Class Members and in causing ADEA Class Members to retire early was in violation of and contrary to the provisions ADEA.
222. Class members who are present employees are at risk of being terminated as a consequence of the application of PPG’s continuing policies, patterns and practices as described herein.
223. As a direct and proximate result of PPG’s conduct, the Representative Plaintiffs and all other ADEA Class Members who are former employees have been deprived of their employment and have been damaged.
224. As a consequence of the unlawful policies, patterns and practices, and unlawful conduct of PPG as described herein, the Representative Plaintiffs and ADEA Class Members suffered damages in the form of lost compensation, and seek front-pay and back pay, attorneys’ fees and costs, declaratory and injunctive relief, and punitive damages.

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PRAYER FOR RELIEF

WHEREFORE, the Representative Plaintiffs, on behalf of them selves and prospective

members of this collective action, pray that this Court:

a. Enter a judgment declaring this action to be a collective action properly maintained pursuant to 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 patterns, practices and omissions, as above-described, in terminating the employment of, or forcing early retirement of, ADEA Class Members of the collective action who were 40 years of age or older at the time of their termination or forced retirement violates ADEA;

c. Enter a judgment declaring that PPG’s extraction of purported releases in connection with the terminations of ADEA Class Members of the collective action are non-compliant with the requirements of OWBPA and controlling authority, and are invalid and unenforceable;

d. Issue a permanent prohibitory injunction ordering PPG and its officers, agents, employees and successors to cease and desist from the unfair discriminatory employment patterns, practices, policies and omissions complained of herein, which result in the termination or early retirement of employees forty-years of age or older;

e. Issue a permanent mandatory injunction requiring PPG to take such affirmative action as will effectuate the purposes of ADEA, including adopting employment practices in accord with ADEA’s requirements;

f. Enter a judgment and award in favor of the Representative Plaintiffs and the ADEA Class Members, and against PPG for reasonable monetary damages, including back pay (plus interest or an appropriate inflation factor and an enhancement to offset any adverse tax consequences associated with lump sum receipt of back pay), front pay, benefits and all other damages owed to the Representative Plaintiffs and the ADEA Class Members, in an amount proven at trial, resulting from PPG’s unlawful and discriminatory acts or omissions;

g.
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Enter a judgment and award in favor of each of the Representative Plaintiffs and each ADEA Class Member for the maximum statutory amount of liquidated damages available under ADEA;
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h. 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;
i. Enter a judgment and award in favor of the Representative Plaintiffs and the ADEA Class for pre-judgment and post-judgment interest;
j. Award such other and further legal and equitable relief as may be found appropriate and as this Court may deem just and proper; and
k. Retain jurisdiction over this action until such time as it is satisfied that PPG has remedied the practices complained of and is determined to be in full compliance with the law.

COUNT III PPG’s Violation of Employee Retirement Income Security Act of 1974 as amended,
29 U.S.C. § 1001, et seq 225. Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 224 above as if fully set forth herein. 226. PPG established the PPG Industries, Inc. Retirement Income Plan (“the Plan”) which is a qualifying retirement plan (“Plan”) and is covered under the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001, et seq. 227. At all relevant times, PPG has been the Plan administrator of the Plan within the meaning of ERISA, because it has been so designated in the governing plan instruments. As such, PPG is a fiduciary with respect to the Plan. 228. PPG employed the Representative Plaintiffs and the similarly situated ERISA Class Members on a full-time basis until their employment was abruptly terminated without

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advance notice or cause. As such, the Representative Plaintiffs and ERISA Class Members are participants under the Plan.
229. As a consequence of the unlawful and abrupt termination of their employment, the Representative Plaintiffs and the similarly situated ERISA Class Members now have drastically reduced eligibility for retirement benefits under the Plan.
230. At the time of the involuntary termination of their employment, Representative Plaintiffs and the similarly situated ERISA Class Members were either vested participants in the Plan or would have become vested had their employment not been terminated by PPG.
231. The Plan calculates an employee’s monthly pension benefit based upon various multipliers to be applied to the employee’s “Final Average Monthly Salary” (“FAMS”). The Plan defines FAMS as the “highest average monthly salary you received for any five consecutive years during the 10 years immediately prior to your retirement.”
232. If PPG had permitted the named Representative Plaintiffs and similarly situated ERISA Class Members that were already vested in the Plan to retire at the age of 66, their monthly pension benefits would have been calculated based upon a higher “final average monthly salary” and their pension benefit would have been greater.
233. If PPG had permitted similarly situated non-vested ERISA Class Members to retire at the age of 66, by the time they had reached that age, they would have been vested in the Plan.
234. PPG’s discharges of the Representative Plaintiffs and similarly situated ERISA Class Members was, in whole or in part, motivated by the intent to reduce their pension benefits,

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and by the specific intent of interfering with their attainment of the rights to which they would have become entitled under the Plan if they had been permitted to retire at age 66.
235. PPG’s actions in terminating the Representative Plaintiffs’ employment and the employment of other ERISA Class Members was in violation of and contrary to the provisions of Section 510 of ERISA, which makes it unlawful for an employer to discharge an employee “for the purpose of interfering with the attainment of any right to which such participant may become entitled under the provisions of an employee benefit plan.” 29 U.S.C. § 1140.
236. As a direct and proximate result of PPG’s conduct, the Representative Plaintiffs and all other ERISA Class Members have been deprived of their employment and all rights and benefits to be derived therefrom and have been prevented from obtaining retirement benefits to which they were entitled under the Plan.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually and on behalf of all othe r similarly situated

ERISA Class Members, pray that this Court:

a. Enter a judgment declaring this action to be a class action properly maintained pursuant to Rule 23(a) and Rules 23(b)(1)(2) and (3) of the Federal Rules of Civil Procedure, that the Representative Plaintiffs be designated as representatives of the ADEA Class, and that their counsel of record be designated as ERISA Class Counsel;

b. Enter a judgment declaring that PPG’s conduct in terminating the employment of employees who are 40 years of age or older violates Section 510 of ERISA;

c.
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Issue a permanent prohibitory injunction ordering PPG and its officers, agents, employees and successors to cease and desist from the unfair employment patterns, practices, policies and omissions complained of herein, which violate Section 510 of ERISA;
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d. Issue a permanent mandatory injunction requiring PPG to take such affirmative action as will effectuate the purposes of ERISA, including adopting employment practices in accord with ERISA’s requirements;
e. Enter a judgment and award in favor of the Representative Plaintiffs and the ERISA Class Members for the earnings and benefits lost by the Representative Plaintiffs and the ERISA Class Members resulting from the illegal termination of their employment by PPG;
f. Enter a judgment and award in favor of the Representative Plaintiffs and the ERISA Class for costs, including, but not limited to, reasonable attorney’s fees, experts’ fees, and other costs and expenses of this litigation;
g. Enter a judgment and award in favor of the Representative Plaintiffs and the ERISA Class for pre-judgment and post-judgment;
h. Award such other and further legal and equitable relief as may be found appropriate and as this Court may deem just and proper; and
i. Retain jurisdiction over this action until such time as it is satisfied that PPG has remedied the practices complained of and is determined to be in full compliance with the law.
JURY TRIAL DEMANDED ON ALL ISSUES SO TRIABLE

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Date: August 7, 2007

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
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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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 7th day of August, 2007, Plaintiffs First
Amended Class and Collective Action Complaint was served via ECF as follows:
Terrence H. Murphy, Esquire Alan M. Pittler, Esquire
Lisa M. Passarello, Esquire James F. Glunt, Esquire
BUCHANNAN INGERSOLL & ROONEY P.C. One Oxford Centre
301 Grant Street, 20th Floor Pittsburgh, PA 15219

s/

Bruce C. Fox, Esquire

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 Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

2009 WL 596014 Only the Westlaw citation is currently available.
United States District Court, W.D. Pennsylvania.
Arthur C. RUPERT, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner, individually and on behalf of all others similarly
situated, Plaintiffs, v.
PPG INDUSTRIES, INC., Defendant. Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt, Wade C. Bittner on behalf of themselves and all others similarly
situated, Consolidated Plaintiffs, v.
PPG Industries, Inc., Consolidated Defendants.
Nos. 07cv0705, 08cv0616. | Feb. 26, 2009.
Attorneys and Law Firms
Bruce C. Fox, Colin W. Murray, Melissa L. Evans, Rudy A. Fabian, Obermayer Rebmann Maxwell & Hippel LLP, Charles A. Lamberton, Lamberton Law Firm, Pittsburgh, PA, for Plaintiffs/Consolidated Plaintiffs.
Jaime S. Tuite, James F. Glunt, Terrence H. Murphy, Lisa M. Passarello, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA, for Defendant/Consolidated Defendants.
Opinion
ORDER OF COURT ADOPTING REPORTS AND RECOMMENDATIONS OF SPECIAL MASTER AT
DOCUMENT NOS. 123, 124 AND 126
ARTHUR J. SCHWAB, District Judge.
*1 After careful consideration of the various motions for summary judgment and the briefs and supporting materials, the Special Master’s Reports and Recommendations at documents nos. 123, 124 and 126, the objections thereto (doc. nos. 128 and 129), and the respective responses to objections (doc. nos. 130, and 131), the Court adopts said Special Master’s Reports and Recommendations, and enters the following Order on the

pending motions for summary judgment:
Defendant’s Motions for Summary Judgment as to Plaintiffs Hunt and Bittner (doc. nos. 75 and 83) are GRANTED with prejudice as to Plaintiffs Hunt and Bittner’s claims as class representatives on behalf of others similarly situated, and as to their individual claims to the extent such individual claims rely on the charges Plaintiffs Hunt and Bittner filed with the EEOC.
Defendant’s Motions for Summary Judgment as to Plaintiffs Rupert, Campbell, and Austin (doc. nos. 77, 79 and 81) are DENIED with regard to issues not relating to the Separation Agreement and Releases executed by Plaintiffs Rupert and Campbell, which are the subject of the Report and Recommendation at doc. no. 124, and with regard to issues regarding the Separation Agreement and Releases executed by Plaintiffs Rupert and Campbell, which are the subject of the Report and Recommendation at doc. no. 126.
Plaintiffs’ Motion for Summary Judgment with regard to the Separation Agreements and Releases (doc. no. 85) is DENIED in part as moot, insofar as it relates to Defendant’s previously withdrawn Fourth Affirmative Defense, and otherwise is GRANTED; (ii) Defendant’s Second Affirmative Defense is STRICKEN with prejudice; and (iii) judgment is entered in favor of Plaintiffs on Defendant’s Counterclaim with prejudice to Defendant’s right to bring a Counterclaim based on breach of contract, but without prejudice to Defendant’s right to file an Amended Counterclaim for restitution or on theories other than breach of contract.
SO ORDERED.
REPORT AND RECOMMENDATION
KEVIN P. LUCAS, Special Master.
I. Recommendation It is recommended that Defendant’s Motions for Summary Judgment as to Plaintiffs Hunt and Bittner (Docket Nos. 75 and 83) be granted. It is recommended that the grant of summary judgment be with prejudice as
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

to Plaintiffs Hunt and Bittner’s claims as class representatives on behalf of others similarly situated and as to their individual claims to the extent such individual claims rely on the charges Plaintiffs Hunt and Bittner filed with the EEOC. Nothing in this Report and Recommendation is intended to constitute a ruling on any issue not yet presented as to whether or the extent to which Plaintiffs Hunt and Bittner would or might be entitled to status as class members if class certification were granted at a subsequent stage in this case.
II. Report Plaintiffs Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner bring this action in which they allege that the termination of their employment by Defendant PPG Industries, Inc. (“Defendant”) violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). Plaintiffs allege claims of both disparate treatment and disparate impact. Plaintiffs bring these claims both as individuals and as class representatives on behalf of others similarly situated.
*2 Presently before this Court for disposition are Defendant’s Motions for Summary Judgment as to Plaintiffs Hunt and Bittner. Defendant has asserted as an affirmative defense that Plaintiffs Hunt and Bittner failed to exhaust their administrative remedies by filing timely charges with the EEOC. In the alternative, Defendant has asserted that even if Plaintiffs Hunt and Bittner filed timely charges, they failed to exhaust their administrative remedies in regards to both their disparate impact claims asserted in Count II of the First Amended Complaint and their class claims on behalf of others similarly situated. For the reasons that follow, it is recommended that Defendant’s Motions for Summary Judgment as to Plaintiffs Hunt and Bittner be granted.
A. The Limitations Period Was Not Equitably Tolled as to Plaintiffs Hunt and Bittner. It is undisputed that Plaintiffs Hunt and Bittner did not make any filings with the EEOC until after the 300 day limitations period for filing a charge had run. Plaintiffs Hunt and Bittner argue, however, that equitable tolling applies and that their EEOC filings were therefore timely.
As Plaintiffs conceded in their October 16, 2008 letter to the Special Master, the burden of proof is on Plaintiffs

Hunt and Bittner as the parties asserting equitable tolling. See Courtney v. LaSalle Univ., 124 F.3d 499, 505 (3d Cir.1997).
Equitable tolling applies where: (1) “the defendant actively misled the plaintiff respecting the reason for the plaintiff’s discharge”; (2) “this deception caused the plaintiff’s non-compliance with the limitations period”; and (3) the plaintiff “could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” Ruehl v. Viacom, Inc., 500 F.3d 375, 384 (3d Cir.2007).
Federal courts have typically extended equitable relief only sparingly.... We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.
.... [T]he principles of equitable tolling ... do not extend to what is at best a garden variety claim of excusable neglect.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 457-58, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); accord Podobnik v. USPS, 409 F.3d 584, 591 (3d Cir.2005) (“The doctrine of equitable tolling ... should be applied ‘sparingly.’ ”).
As to the first element of equitable tolling, Plaintiffs Hunt and Bittner argue that Defendant misled them by stating that the reason for their termination was restructuring and downsizing and by not revealing the use of a ranking and rating system based upon performance and subjective “success factors.” They also assert they were misled by the Defendant’s informational disclosures under OWBPA, which allegedly were incomplete and misleading as to the scope of the RIF and its disproportionate impact on older workers.
Plaintiffs rely on Meyer v. Riegel Prods. Co., 720 F.2d 303 (3d Cir.1983). The Meyer plaintiff had been discharged, and several weeks later wrote to the defendant’s Director of Personnel seeking to ascertain the reason for his discharge. The Director of Personnel wrote back “that he had been dismissed ‘when the Engineering Department was reorganized due to the acquisition of [the plaintiff’s employer] by [another company].’ ” See Meyer, 720 F.2d at 305. The plaintiff later learned that a younger man had replaced him, and, based upon this information, filed a charge of discrimination more than 300 days after his termination. Responding to the complaint, the
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

defendant alleged for the first time that the plaintiff had been dismissed due to incompetence.
*3 The United States Court of Appeals for the Third Circuit observed that equitable tolling is appropriate where “the defendant has actively misled the plaintiff respecting the cause of action,” noting that “cases may arise where the employer’s own acts or omissions have lulled the plaintiff in to foregoing prompt attempts to vindicate his rights.” Id. (quoting School Dist. v. Marshall, 657 F.2d 16, 20 (3d Cir.1981), and Bonham v. Dresser Indus., 569 F.2d 187, 193 (3d Cir.1977)). The court held that either the letter informing the plaintiff that he was dismissed when the department was reorganized or the surreptitious plan to replace the plaintiff with a younger employer, of which the plaintiff was not informed, could have caused the plaintiff to temporarily defer filing his charge of discrimination. See id. at 307.
The court rejected the argument that a defendant’s misrepresentation as to the reasons for termination should not support equitable tolling where, despite the misrepresentations, the plaintiff was suspicious that the real reason was age discrimination. Significantly, in doing so, it distinguished Hart v. J.T. Baker Chem. Co., 598 F.2d 829 (3d Cir.1979).
In Hart, the plaintiff had been given four reasons for her discharge. Although she was suspicious at the time of her discharge that discrimination may have played a role, she contended that she was entitled to equitable tolling until these suspicions were confirmed by the defendant’s subsequent use of gender-associated language in a letter of recommendation. The Hart court found that the facts upon which her charge was predicated were known to the plaintiff on the date of her discharge. Noting that “in the absence of evidence that the defendant contributed to [the charge-filing] delay, it may be extremely unfair to the defendant to require its defense of this litigation,” the court concluded that “her suspicions were sufficient to lead a reasonable person to inquire further into the reasons for her discharge.” Hart, 598 F.2d at 834.
The Meyer court distinguished Hart as a case where “the facts upon which her charge were predicated were known to her on the date of the discharge,” and the “plaintiff simply did not allege that defendant had anything to do with her untimeliness.” Meyer, 720 F.2d at 308. Meyer stated that Hart had observed that “had plaintiff inquired into the reasons for her dismissal and then alleged that she had been deceived, an entirely issue would have been presented.”1 Id. In contrast, Meyer explained that the

Meyer plaintiff “allege[d] precisely what the plaintiff in Hart failed to allege: that defendants deceived him into postponing the filing of a claim. Here, too, plaintiff did precisely what the Hart court suggests: he asked defendant for an explanation of his dismissal.” Meyer, 720 F.2d at 308. Thus, Meyer held that the plaintiff’s suspicions at the time of his discharge did not preclude the invocation of equitable tolling. See id.

1

While Hart did not make this exact observation, it did

hold that a reasonable person would have inquired

further about the reasons for her discharge. Hart, 598

F.2d at 834.

*4 The court of appeals revisited the issue in Ruehl v. Viacom, Inc., 500 F.3d 375 (3d Cir.2007). In Ruehl, the plaintiff alleged that the defendant had misled him by failing to make the informational disclosures required by the OWBPA. The court rejected the defendant’s argument that a failure to provide OWBPA disclosures, an omission, could not constitute “actively misleading” under the first prong of the equitable tolling analysis. The court found it unnecessary to determine whether the plaintiff had in fact been misled, however, because the plaintiff had failed to create an issue of fact as to the second and third prongs of the equitable tolling analysis.
The court emphasized a plaintiff must prove that the “deception caused the plaintiff’s non-compliance with the limitations provision.” Ruehl, 500 F.3d at 384. It further stated that in addition, “equitable tolling requires the plaintiff to demonstrate that he or she could not, by exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” Ruehl, 500 F.3d at 384 (quoting In re Mushroom Transp. Co., 382 F.3d 325, 339 (3d Cir.2004)). In this regard, the court cited Hart as “denying equitable tolling although employee was given four reasons for her discharge, none related to her gender, [where] ‘her suspicions [of gender discrimination] were sufficient to lead a reasonable person to inquire further into the reasons for her discharge.’ ” Id. (quoting Hart, 598 F.2d at 834).
Ruehl assumed for purposes of argument that the defendant “actively misled [the plaintiff] as ‘part of an intentional plan to hide vital information from its employees,’ “ but explained that the plaintiff’s “diligence is also in issue.” Id. The court noted that plaintiff first thought that he had been subjected to age discrimination prior to signing a claims release, and had been suspicious
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

of age discrimination at the defendant’s workplace generally since before his termination based upon comments he had heard about other older workers. See id. at 385. The court held that “[t]hese facts, which would have supported [the plaintiff’s] cause of action, were known to him by the time he was terminated.... He has failed to explain how [the defendant’s] failure to disclose under the OWBPA, however misleading, caused his failure to pursue a claim based on information he already had.” Id.
Thus, where an employee suspects or has reason to suspect that discrimination may be the reason for his or her termination, analysis begins with reconciling Meyer, where the plaintiff’s suspicions did not preclude equitable tolling, with Ruehl and Hart, where they did. Ruehl did not distinguish Meyer on the issues of causation or diligence. Meyer, however, distinguished Hart, on which Ruehl relied, on two bases: (1) that the facts upon which her charge was based were known to the Hart plaintiff, who was thus not misled by her employer; and (2) that the Meyer plaintiff made an inquiry as to the reasons for his termination. In fact, in both Ruehl and Hart, the plaintiffs’ suspicions were based upon their knowledge of facts that the court found would have supported a cause of action. In Meyer, the plaintiff’s suspicions were based upon the fact that his supervisor in terminating him indicated to plaintiff that he had received a “real screwing” and on the “pervasive belief among employees that [the employer] traditionally exploited older workers.” Meyer, 720 F.2d at 305. These facts by themselves would not support a cause of action. Reconciling these three decisions, it appears that equitable tolling is not available to excuse the timely filing of an employment termination discrimination charge where the plaintiff employee has information that would support a cause of action and fails to make further inquiry.
*5 This is consistent with the United States Court of Appeals for the Third Circuit’s decision in Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir.1994). Although Oshiver predates Ruehl, it does distinguish Meyer and Hart in endeavoring to sketch the contours of the equitable tolling doctrine. It emphasized that in Hart, the “plaintiff simply did not allege that defendant had anything to do with her untimeliness,” noting that “all the facts upon which Hart’s charge of discrimination was predicated were known to her on the date of her discharge.” Oshiver, 38 F.3d at 1388. It concluded that:

where a defendant actively misleads the plaintiff regarding the reason for the plaintiff’s dismissal, the statute of limitation will not begin to run, that is, will be tolled, until the facts which would support the plaintiff’s cause of action are apparent, or should be apparent to a person with a reasonably prudent regard for his or her rights.

Id. at 1389.
Plaintiff Hunt avers that he was specifically told by Defendant that his termination was due only to economic factors. (See Supplemental Affidavit of Kenneth J. Hunt, at 2.) He further asserts that he first learned of the scope of the RIF, its disproportionate impact on older workers and the use of the ranking and rating system in November 2006 when he was contacted by Plaintiff Rupert. Id. He avers that prior to his termination, he worked out of his home, rarely visited any of Defendant’s offices, was not in close touch with large numbers of other employees of Defendant, and was terminated at a local motel away from other employees. (Id. at 3; Affidavit of Kenneth J. Hunt, at 2.)
Hunt, however, was provided with a Decisional Unit Information form (“DUI”). Even assuming for purposes of argument that the DUI was misleadingly incomplete and did not comply with the requirements of the OWBPA, it did indicate that out of 15 employees, the three who were terminated were all in their 50’s.2 It further indicated that the average age of those being terminated was 53.5, while the average age of those being retained was 48.25. The DUI revealed indirect evidence of possible age discrimination in that it indicated that younger workers in the same or similar positions were retained. Thus, Plaintiff Hunt could have supported a prima facie case of discrimination based upon the information in the DUI. See Anderson v. Consolidated Rail Corp., 297 F.3d 242, 249 (3d Cir.2002) (to establish a prima facie case of age discrimination in the context of a reduction in force, the plaintiff must show that he was a member of the protected class, was qualified for the position at issue and suffered an adverse employment action, and that the employer retained someone similarly situated to him who was sufficiently younger).

2

Plaintiffs argue that the information disclosure forms

were not understandable and that Plaintiffs were not

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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

clear whether an indication of ineligibility on the form meant that such person had not been terminated, or whether it meant that such person had been terminated but was ineligible for severance. In the context of equitable tolling, however, where diligence is an issue, a reasonably diligent older worker receiving an allegedly unclear form suggesting possible disparate treatment of older and younger workers in regards to their “eligibility” would at least inquire to what eligibility meant.
It is undisputed that Hunt did not make any further inquiry, despite his knowledge of facts suggested by the DUI supporting a prima facie case and the possible disproportionate impact on older workers. Moreover, Hunt knew or should have known that Defendant’s articulated non-discriminatory reasons for the termination of his employment, i.e., economic conditions and organizational restructuring, on their face did not explain why Hunt in particular was selected as part of the economic downsizing for employment termination while others were not. Under these circumstances, a reasonably diligent person would, at a minimum, inquire as to the reason why he in particular was selected for employment termination as part of a corporate downsizing. Thus, even assuming that Defendant misled Hunt about the reasons for his termination and the scope of the RIF, reasonable minds could not differ as to whether these misrepresentations caused Hunt to defer filing and whether in the exercise of reasonable diligence he could not have discovered information essential to his possible claim.
*6 Plaintiff Bittner also avers that he was specifically told by Defendant that his termination was due only to economic factors. (See Supplemental Affidavit of Wade C. Bittner, at 2.) He further asserts that he first learned of the scope of the RIF, its disproportionate impact on older workers and the use of the ranking and rating system in early November 2006 when he was contacted by a Brad Frazier. Id. Plaintiff Bittner avers that prior to his termination, he worked out of his home, rarely visited any of Defendant’s offices, was not in close touch with large numbers of other employees of Defendant, and was terminated at a local motel away from other employees. (Id. at 2; Affidavit of Wade C. Bittner, at 1-2.)
Plaintiff Bittner also testified,
[O]ver the years you would see individuals that would leave the

company and then just asking people, you know, why is he leaving, why are they leaving and you’d get an answer similar to it wasn’t his choice. And that’s sort of-might have been maybe the first inklings you had that the older employees were targeted to be let go.
(Transcript of the Deposition of Wade C. Bittner, at 70.) Significantly, he received the same informational disclosure as Plaintiff Hunt.
As with Hunt, in light of Bittner’s suspicions, the additional information regarding historical terminations upon which his suspicions were based, and the possible disproportionate impact and prima facie case suggested by the DUI, reasonable minds cannot differ as to whether a reasonable person in Bittner’s position would have inquired further.
Although Plaintiffs Hunt and Bittner argue that in light of the events that had occurred, neither trusted Defendant to give an honest answer to any inquiry, a plaintiff employee in these circumstances is not excused from exercising reasonable diligence merely because he or she distrusts the defendant employer. See Podobnik v. United States Postal Serv., 409 F.3d 584, 587, 592 (3d Cir.2005) (holding that plaintiff terminated by the Postal Service did not exercise reasonable diligence where he took no further action after being told by the EEOC to pursue his claim through the Postal Services EEO, which plaintiff understood to mean with his postal service supervisors and which he deemed futile). Further, even a supposedly dishonest answer by an employer may have utility to a plaintiff employee seeking information on which to build a discrimination case.
Plaintiffs also argue that there is evidence that further inquiry as to the reasons for their terminations would in fact have been futile. It should be noted that the United States District Court for the Eastern District of Pennsylvania, applying the closely related doctrine of fraudulent concealment, has rejected the argument that a plaintiff who has not exercised diligence may nonetheless be entitled to tolling on the ground that diligence would have been futile. See Farrell v. A.I. DuPont Hosp. for Children of the Nemours Foundation, No. 04-3877, 2006 WL 2035146, at *7 (E.D.Pa. July 19, 2006) (unpublished opinion). The court held:
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

*7 If the Court were to adopt Plaintiff’s argument, it would eviscerate the concept of reasonable diligence and the purpose underlying the statute of limitations. Claims would never expire if an expired claim remained viable because exercising reasonable diligence would have been futile since the negligence would not have been discovered even with reasonable diligence.

Id.
This nonbinding authority is, however, in tension to an extent with the language in Ruehl that requires a plaintiff to demonstrate that “he or she could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” Ruehl, 500 F.3d at 384. Ruehl ‘s formulation of the analysis seems to focus on whether the information was discoverable, not whether the plaintiff actually exercised reasonable diligence.
Regardless, Plaintiffs Hunt and Bittner have not adduced evidence that further inquiry would have been futile. Plaintiffs point to the fact that Plaintiff Austin asked during her termination interview whether she was being terminated because she had been sick. In response, she was told, “no, it’s because of what Phil [Jones] read to you.” (Transcript of Linda Austin, at 58.) Another employee of Defendant who apparently participated in the terminations testified that his instructions were “just don’t waiver from the script, and it is going to be difficult, and read it as it says, and we will move on.”3 (Transcript of Gregory Rickard, at 58.) The fact that Plaintiff Austin asked if illness was the reason for her termination and was told that it was not simply does not support the contention that inquiry generally or in a particular instance as to how individuals were selected for termination would have been futile. Similarly, the fact that employees of Defendant were generally instructed not to waiver from the script does mean that Defendant would have refused to answer questions as to matters not covered by the script, such as the identities and situations of the younger retained employees referred to in the DUI.

3

To similar effect, John Prazenica, Defendant’s Director

of Human Resources for the Industrial Coatings

Business Unit, testified that none of the employees in

whose termination he participated were told about the use of the ranking system. (Transcript of John Prazenica, at 156-157.) Rett Wyman, Defendant’s Human Resources Manager for the Industrial Coatings Business Unit, testified that individual performance was not mentioned in the “universal script” that he had authored for managers to use in carrying out the terminations. (Transcript of Rett Wyman, at 61.)
In sum, reasonable minds cannot differ as to the fact that Plaintiffs Hunt and Bittner did not exercise reasonable diligence by their doing nothing despite their knowledge that they had been terminated in a RIF concerning which they had information suggesting a possible disproportionate impact on older workers, that younger workers were retained, and that they had not been told the reason they in particular were selected for employment termination as part of the corporate downsizing while other employees were retained. Therefore, as a matter of law, Plaintiffs Hunt and Bittner may not rely on equitable tolling and have failed to exhaust administrative remedies.

B. Hunt and Bittner Are Not Entitled to Equitable Tolling on the Basis of Noncompliance with the Statutory Notice-Posting Requirement. Plaintiffs Hunt and Bittner also argue that Defendant’s failure to comply with the ADEA’s statutory notice-posting requirement supports equitable tolling. Again, the burden of proof is on Plaintiffs Hunt and Bittner as the parties asserting equitable tolling. See Courtney v. LaSalle Univ., 124 F.3d 499, 505 (3d Cir.1997).

*8 Under 29 U.S.C. § 627,

[e]very employer, employment

agency, and labor organization

shall post and keep posted in

conspicuous places upon its

premises a notice to be prepared or

approved by the Equal

Employment

Opportunity

Commission setting forth

information as the Commission

deems appropriate to effectuate the

purposes of this chapter.

29 U.S.C. § 627. The implementing regulations provide that every employer:
6

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

shall post and keep posted in conspicuous places upon its premises the notice pertaining to the applicability of the Act prescribed by the Commission or its authorized representative. Such notice must be posted in prominent and accessible places where it can readily be observed by employees, applicants for employment and union members.
29 C.F.R. § 1627.10.
A failure to comply with § 627 can provide the basis for equitable tolling of the limitations period. In Bonham v. Dresser Indus., Inc., 569 F.2d 187 (3d Cir.1978), the court of appeals held that “failure to post the required notice will toll the running of the 180-day period, at least until such time as the aggrieved person seeks out an attorney or acquires actual knowledge of his rights under the [ADEA].” Id. at 193. Hunt asserts that from 1990 to 2001 he worked in a small satellite office, where he was responsible for the bulletin board. (Supplemental Affidavit of Kenneth J. Hunt, at 3.) He avers that he was never provided by Defendant with any ADEA posters to post. Id. He asserts that from 2001 until his 2006 termination, he worked from home and averaged no more than three to four days per year in Defendant’s Pittsburgh offices. Id. Similarly, Bittner asserts that he worked out of his home for eighteen years prior to his termination and that during that entire time he spent no more than three days in Defendant’s Pittsburgh offices. (Supplemental Affidavit of Wade C. Bittner, at 2.) Neither Bittner nor Wade recall seeing any ADEA notices posted, and both believe they never received written notice of their ADEA rights. Id. at 3; Supplemental Affidavit of Kenneth J. Hunt, at 3.)
Hunt asserts in the briefing that he first learned of his ADEA rights in November 2006, but his Affidavit states only that he first learned in November 2006 of the scope of the RIF, its disproportionate impact on older workers, the use of the ranking system and the fact that “certain affected individuals felt there was sufficient evidence to warrant legal action.” (Supplemental Affidavit of Kenneth J. Hunt, at 2.) His Affidavit does not address when he learned of his general right to be free of age discrimination under the ADEA. Similarly, Bittner asserts in the briefing and his Affidavit that he first learned of the facts underlying his ADEA claim in early November

2006. (Supplemental Affidavit of Wade C. Bittner, at 2.) Neither the briefing nor his Affidavit directly addresses when he first learned of his general right to be free of age discrimination under the ADEA.
*9 Plaintiffs rely on Charlier v. S.C. Johnson & Son, 556 F.2d 761 (5th Cir.1977), and Edgeworth v. Forth Paper Co., 673 F.Supp. 922 (N.D.Ill.1987), for the proposition that where an employee works from home, visits the office infrequently and is unaware of his or her ADEA rights, posting the required notice in the office is insufficient and equitable tolling applies.
More persuasive, however, is English v. Pabst Brewing Co., 828 F.2d 1047 (4th Cir.1987), in which the United States Court of Appeals for the Fourth Circuit declined to adopt Charlie ‘s interpretation of § 627 as imposing “a broad obligation on employers to ‘provide employees with a meaningful opportunity of becoming aware of their ADEA rights.’ ” Id. at 1050 (quoting Charlier, 556 F.2d at 764)). It explained:
It might well be desirable to require employers to send ADEA notices to traveling sales representatives and others who work off the company’s premises. Congress might adopt such a requirement in the future. The terms of the present statute and its implementing regulation, however, require only that the notice be posted “in conspicuous places upon [the employer’s] premises.”
Id. (quoting 29 U.S.C. § 627). The court held that the employer complied with the terms of the statute by posting notice “on the only facilities in the company that plaintiff ever visited, and which plaintiff did visit when he was informed of his termination,” and that the plaintiff therefore could not invoke equitable tolling. Id.
This issue was also considered by the United States Court of Appeals for the Sixth Circuit in an unpublished opinion, which agreed with English, rejecting the position taken by Charlier and Edgeworth. In Vana v. Mallinckrodt Med., Inc. ., 70 F.3d 116, 1995 WL 675597 (6th Cir.1995) (unpublished opinion), the court expansively explained its reasons for doing so:
First, [Charlier ] admits that Congress and the EEOC “do not require that an employer actually inform employees of the ADEA and its applicability,” yet the court proceeds to impose almost precisely that duty judicially. When so motivated, Congress can be remarkably specific in mandating notification requirements, and its failure to do so here seems to be a
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

reasonable compromise between the interests of potential plaintiffs and defendants in discrimination suits.
Second, the Charlier court noted the goal of ensuring that “older employees may know of their new rights.” The ADEA and similar anti-discrimination legislation may have been a novelty eighteen years ago, but most workers today are aware of some form of legal protection against discrimination. This is not to say that notice is unnecessary, because Congress and the EEOC have decided that it is, but it does weaken the argument for creating an “equitable” exception to an explicit limitations period based on an employee’s ignorance of the law....
Third, the Charlier court cites the shortness of the filing period as justifying a broad interpretation of the notice provisions, but allowing the limitations period to be tolled by ignorance of a specific legal right is “inconsistent with and [would] undermine the underlying ADEA policy of encouraging speedy, non-judicial resolutions to age discrimination employment disputes.” Finally, by promulgating specific procedures for employers, Congress and the EEOC simplify compliance by providing relatively clear-cut guidelines that can be easily followed; a fact-specific, employee-specific notice standard increases uncertainty and increases the likelihood of litigation over what is essentially a threshold procedural matter.
*10 Vana, 70 F.3d 116, 1995 WL 675597, at *3-4.
Turning to Edgeworth, the Vana court found unpersuasive its “parade of ‘probablys’ ” as to what Congress contemplated or should have contemplated. Id. at *4.
First, the [Edgeworth ] court’s accusation of a “congressional lack of foresight” is weakened by the realization that Congress has not only had the opportunity to amend the notice provisions, but has in fact amended the ADEA several times. Thus, that body’s failure to “update” the ADEA’s notice provisions is just as likely due to Congress’s satisfaction with the existing rules. Second, the Edgeworth court fails to consider some advantages of posting notices

besides durability: low cost and simplicity of compliance. Congress may be reluctant to adopt a more fact-specific standard because it would be more expensive and unfamiliar to employers, as well as stimulating litigation and rewarding procrastination; every changed rule has a reliance and implementation cost. Finally, the rationale in Edgeworth is equally applicable to employees who never read the EEOC notices, although exposed to them on a daily basis-the law simply requires actual posting, not actual notice, and no amount of rationalization should transform the former into the latter.
Id.
The court agreed with the Fourth Circuit in English that however desirable it might be to require employers to send notices to traveling sales representatives, the statute that Congress adopted only requires posting “in conspicuous places upon the employer’s premises.” See id. at 5. In light of this, the court explained that:
those courts that have focused on second-guessing Congress have been distracted from the critical inquiry concerning equitable tolling: whether the defendant somehow lulled or misled plaintiffs into letting their rights lapse. As we see it, meeting the statutory and regulatory requirements of Congress and the EEOC can in no way be construed as “engaging in misconduct that prevents the plaintiff from filing his or her claim on time,” or constituting a “wrong ... [that] bar[s] inequitable reliance on statute of limitations.”
Id. Thus, the court held that “a plaintiff’s failure to observe EEOC notices alone is not grounds for equitable tolling, where an employer has posted its EEOC notices at conspicuous and accessible locations.” Id.
Neither party has identified any authority on this precise issue from a court within the Third Circuit. Plaintiffs, however, argue that the rationale of Charlier and Edgeworth is supported by Miller v. State Chem. Mnf’g Co., 706 F.Supp. 1166 (W.D.Pa.1988) (Bloch, J.). In resisting summary judgment, the Miller plaintiff asserted that ADEA notice was not posted in the three locations that salesmen frequented and where the were likely to see
8

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

them. The court with little discussion of the law or of the plaintiff’s evidence, held that “[w]hether the employer posted any posters in ‘conspicuous places’ and when plaintiff acquired actual notice of his rights under the ADEA are questions of fact that would have to be determined by this Court at the time of trial.” Miller, 706 F.Supp. at 1169-70.
*11 Also, in Bomberger v. Consolidated Coal Co., 623 F.Supp. 89 (W.D.Pa.1985), the United States District Court for the Western District of Pennsylvania (Cohill, J.) declined to apply equitable tolling where the plaintiff worked in a trailer apart from other buildings, and, that when he was not in the trailer, he was in one of two libraries, and that in none of these places was notice posted. The court cited the language of Charlier, as quoted in McClinton v. Alabama By-Products Corp., 574 F.Supp. 43 (N.D.Ala.1983), aff’d 743 F.2d 1483 (11th Cir.1984), to the effect that “[n]otice is sufficient if it is posted conspicuously so that employees have a ‘meaningful opportunity of becoming aware of their ADEA rights.’ ” Bomberger, 623 F.Supp. at 92 (quoting McClinton, 574 F.Supp. at 47 (citing Charlier, 556 F.2d at 764)). Applying this standard, the court granted summary judgment for the defendant, holding that “§ 627 does not require posting in every room of each building” and that plaintiff’s allegations that no notice was posted in his individual work area and that he did not recall seeing any notices were insufficient as a matter of law to satisfy his burden of proof on the issue of equitable tolling. Id . at 93.
Both Miller or Bomberger address the question as to where at a particular business location or premises notice should appear or be placed to provide a meaningful opportunity for an employee to become aware of his rights. Plaintiffs Hunt and Bittner, however, are remotely stationed employees and do not contend that the posting of notice at some other location or at any of Defendant’s premises would have provided the required notice to them. However, as expressed in the well-reasoned albeit unpublished Vana decision, the plain language of § 627 only requires posting on the employers “premises.” Moreover, the implementing regulation also expressly states that notice must be posted on the employers “premises.” 29 C.F.R. § 1627.10. Although cases that have extended equitable tolling to plaintiffs working off-site focus on the second sentence of the implementing regulation requiring “such notice” to be posted in “prominent and accessible places where it can readily be observed by employees,” under the plain language of the regulation, “such notice” is the notice posted “upon [the

employer’s] premises” referred to in the first sentence. Id. This language therefore provides no basis upon which to upset the balance struck by the ADEA’s limited constructive notice provision.
Moreover, under Third Circuit law, equitable tolling is limited to cases where “(1) the defendant actively misled the plaintiff, (2) if the plaintiff has ‘in some extraordinary way’ been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.” Kocian, 707 F.2d at 753. As suggested in Vana, to the extent that equitable tolling in the Third Circuit is grounded in the defendant’s wrongdoing or deception, whether by act or omission, it would not apply in the notice posting context where the employer has fully complied with the ADEA’s statutory notice provision. Nor would an employer’s failure to give more notice than is statutorily required constitute the kind of “extraordinary” circumstances that may justify equitable tolling even in the absence of employer deception. Thus, Plaintiffs Hunt and Bittner as a matter of law are not entitled to equitable tolling based upon insufficiency of posted notices.
*12 In the alternative, even if equitable tolling were available in certain circumstances to off-site employees where an employer posts ADEA notice only on its premises, Plaintiffs have failed to adduce any evidence as to when they first learned of their general rights under the ADEA. Even those cases extending equitable tolling to off-site employees have held that equitable tolling only applies until the plaintiff first consults counsel or acquires actual knowledge of his or her rights. Charlier, 556 F.2d at 765; Edgeworth, 673 F.Supp. at 926. The Affidavits filed by Plaintiffs Hunt and Bittner indicate that they did not receive notice of their ADEA rights from Defendant, and further aver that they did not learn of the facts underlying their ADEA claims until November 2006. They are silent as to when they first learned of their general rights under the ADEA. It is, however, undisputed that both Hunt and Bittner received at the time of their employment termination a Separation Agreement and Release that specifically mentioned the Age Discrimination in Employment Act.
Accordingly, on this record, Plaintiffs have failed to adduce evidence to create an issue of material fact as to equitable tolling, an issue upon which they bear the burden of proof.
9

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

C. It Is Not Necessary to Decide Whether Hunt and Bittner’s Untimely Charges Gave Notice of Disparate Impact and Class Claims. Given that Plaintiffs Hunt and Bittner did not exhaust their administrative remedies by filing timely charges with the EEOC, it is unnecessary to decide as to Plaintiffs Hunt and Bittner the other issues raised by Defendant’s summary judgment motions including whether the untimely charges that they did file provided sufficient notice of their disparate impact and class claims. However, it is noted that, unlike Plaintiffs Rupert, Austin and Campbell, Plaintiffs Hunt and Bittner did not include allegations suggesting disparate impact or class issues in their perfected charges, but only in the Questionnaires they initially filed with the EEOC. This distinction raises significant legal questions that the parties addressed only summarily in their briefing and whose resolution as indicated above is not necessary under the circumstances. Compare Branum v. United Parcel Serv., 232 F.R.D. 505 (W.D.Pa.2005) (Conti, J.) (in contrast to Title VII and ADA cases, ADEA class allegations must appear on the face of the charge in order to provide notice to the defendant); Rogan v. Giant Eagle, Inc., 133 F.Supp.2d 777 (W.D.Pa.2000) (Cohill, J.) (claim of retaliation presented only in the Questionnaire was not within the scope of the charge, notwithstanding the fact that Questionnaire was deemed a charge for purposes of timely filing); with Carter v. Philadelphia Stock Exchange, No. CIV. A. 99-2455, 1999 WL 715205 (E.D.Pa. Aug.25, 1999) (unpublished opinion) (claim detailed in the plaintiff’s Intake Questionnaire but not within the formal charge was within the scope of a reasonable investigation by the EEOC); see also Canavan v. Beneficial Fin. Corp., 553 F.2d 860, 863 (3d Cir.1977) (the failure of the EEOC to notify the discriminating employer or to attempt conciliation is not a bar to suit by the aggrieved employee); Yhelka v. Dairy Farmers, No. 07cv1736, 2008 WL 698279 (W.D.Pa.2008) (Schwab, J.) (considering information submitted to the EEOC in a letter in determining that a charge of retaliation under Title VII was within the scope of the EEOC investigation that could reasonably be expected to grow out of the Plaintiff’s charge).
III. Conclusion *13 For the reasons stated above, it is recommended that the Defendant’s Motions for Summary Judgment as to Plaintiffs Hunt and Bittner (Docket Nos. 75 and 83) be granted with prejudice as to Plaintiffs Hunt and Bittner’s claims as class representatives on behalf of others

similarly situated and as to their individual claims to the extent such individual claims rely on the charges of discrimination Plaintiffs Hunt and Bittner filed with the EEOC. Nothing in this Report and Recommendation is intended to constitute a ruling on any issue not yet presented as to whether or the extent to which Plaintiffs Hunt and Bittner would or might be entitled to status as class members if class certification were granted at a subsequent stage in this case.
In accordance with this Court’s Order Referring Case to a Special Master dated September 27, 2007 and the stipulation of the parties, either party may file objections to-or a motion to adopt or modify-this report and recommendation no later than fourteen days from the date of the report and recommendation. Responses to objections are due within ten days of the initial filing of said objections or motion.
REPORT AND RECOMMENDATION
I. Recommendation It is respectfully recommended that Defendant’s Motions for Summary Judgment as to Plaintiffs Rupert, Campbell, and Austin (Docket Nos. 77, 79 and 81) be denied insofar as they raise issues not relating to the Separation Agreement and Releases executed by Plaintiffs Rupert and Campbell, which issues will be addressed in a separate Report and Recommendation.
II. Report Plaintiffs Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner bring this action in which they allege that the termination of their employment by Defendant PPG Industries, Inc. (“Defendant”) violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). Plaintiffs allege claims of both disparate treatment and disparate impact. Plaintiffs bring these claims both as individuals and as class representatives on behalf of others similarly situated.
Presently pending for disposition are Defendant’s Motions for Summary Judgment as to Plaintiffs Rupert, Austin, and Campbell. Insofar as the motions as to Rupert and Campbell raise issues related to the Separation
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

Agreement and Releases executed by these two Plaintiffs, these issues will be addressed in a separate Report and Recommendation. The remainder of the issues raised by Defendant’s Motions as to Plaintiffs Rupert, Austin and Campbell are addressed herein collectively, with individual differences highlighted as appropriate.
Defendant has asserted as an affirmative defense that Plaintiffs Rupert, Austin and Campbell failed to exhaust their administrative remedies by filing timely charges with the EEOC. In the alternative, Defendant has asserted that even if Plaintiffs Rupert, Austin and Campbell filed timely charges, they failed to exhaust their administrative remedies in regards to the disparate impact claims asserted in Count II of the First Amended Complaint and, in the case of Plaintiffs Austin and Campbell, their class claims on behalf of others similarly situated.
*14 Failure to exhaust administrative remedies is an affirmative defense as to which Defendant bears the burden of proof. See Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997) (applying Title VII); Spangler v. Moderne Glass Co., No. 6-1394, 2008 WL 919693, at *3 (W.D.Pa. April 3, 2008) (Ambrose, CJ.) (applying ADEA); see also Ray v. CO. Kertes, 285 F.3d 287, 292 (3d Cir.2002) (stating in dicta that courts including the Third Circuit treat exhaustion requirement under Title VII and the ADEA as affirmative defenses).
For the reasons that follow, it is recommended that Defendant’s Motions for Summary Judgment as to Plaintiffs Rupert, Austin and Campbell be denied insofar as they raise issues other than the issues related to the Separation Agreement and Releases to be addressed in a separate Report and Recommendation.
A. Plaintiffs Rupert, Austin and Campbell Filed Timely EEOC Charges.
1. The Intake Questionnaires Constitute a Charge. None of the five Plaintiffs filed formal EEOC charges within the 300 day limitations period. However, Plaintiffs Rupert, Austin and Campbell did file EEOC Questionnaires within the 300 day limitations period. The first issue is thus whether the Questionnaires constitute a charge for purposes of timely filing.
Both parties rely on the recent decision in Federal Express Corp. v. Holowecki, --- U.S. ----, ----, 128 S.Ct. 1147, 1154, 170 L.Ed.2d 10 (2008). In that case, the issue

was whether the plaintiff had filed her charge with the EEOC at least 60 days before filing suit as required by 29 U.S.C. § 626(d). More than 60 days prior to filing suit, the plaintiff had filed an EEOC Form 283, labeled “Intake Questionnaire,” and had attached an affidavit thereto. The parties disputed whether this Questionnaire and Affidavit constituted a charge.
The EEOC filed an amicus brief in which it submitted that the proper test for whether a filing constitutes a “charge” is “whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights.” Id. at 1155. As explained by the EEOC and agreed with by the Court, the term “charge” needs to be defined “in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws and disseminating information about those laws to the public.” Id. at 1157.
The Court explained that “[t]he agency’s duty to initiate informal dispute resolution processes upon receipt of a charge is mandatory in the ADEA context,” “[y]et at the same time, Congress intended the agency to serve an ‘educational’ function.” Id. The Court found that “many filings come from individuals who have questions about their rights and simply want information,” and that “the agency [thus] requires some mechanism to separate information requests from enforcement requests.” Id. The Court reasoned that if all the standard required were an allegation of discrimination and the identity of the defendant, people approaching the agency with questions could end up creating a charge and starting the mandatory dispute resolution process. See id. The Court reasoned that this could deter individuals from providing this minimal information or from consulting the agency contrary to Congress’s intent that the EEOC act as an information provider and attempt to settle disputes informally. See id.
*15 The Court concluded that the agency’s interpretation therefore provided a “reasonable alternative that is consistent with the statutory framework,” and that “no clearer alternatives [we]re within [the Court’s] authority or expertise to adopt,” and so the Court deferred to the agency interpretation under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).1 Id. Accordingly, the Court held that “if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take some remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.” Id. at 1158.
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

The Court explained that this is an objective standard: “the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes.” Id.

1

In light of the Court’s conclusion that the EEOC’s

construction would be accepted even under the less

deferential standard of Skidmore, it found it

unnecessary to resolve whether the heightened standard

of deference set forth in Auer v. Robbins, 519 U.S. 452,

117 S.Ct. 905, 137 L.Ed.2d 79 (1997), applied. See

Holowecki, 128 S.Ct. at 1156.

The Court further explained:
under this permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA.... In the administrative context now before us it appears that pro se filings may be the rule, not the exception.... The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft.
Id.
The Court then turned to the question of whether the Questionnaire and affidavit at issue constituted a charge. The EEOC, although it had not acted upon the filing as a charge, contended that the filing was a charge and that it should have acted upon it as such. See id. at 1159. The Court found that the EEOC’s determination “is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.” Id.
In response to the employer’s argument that the filing contained no request to act, the Court stated that, were the Intake Questionnaire the only document filed, it might agree “that its handwritten statements do not request

action.” Id. The Court further stated that:
The design of the form in use in 2001, moreover, does not give rise to the inference that the employee requests action against the employer. Unlike EEOC Form 5, the Intake Questionnaire is not labeled a “Charge of Discrimination.” In fact the wording of the questionnaire suggests the opposite: that the form’s purpose is to facilitate “pre-charge filing counseling” and to enable the agency to determine whether it has jurisdiction over “potential charges.” There might be instances where the indicated discrimination is so clear or pervasive that the agency could infer from the allegations themselves that action is requested and required, but the agency is not required to treat every completed Intake Questionnaire as a charge.
*16 Id.
The Court held, however, that the attached affidavit, which concluded with the statement, “[p]lease force [the defendant] to end their age discrimination plan” was properly construed as a request for agency action. Id. at 1159-60. Although the defendant pointed to language in the affidavit indicating the plaintiff’s understanding that the affidavit would be kept confidential, the Court found that this did not prevent the filing from being a charge, where plaintiff did not request the agency not to contact her employer and in fact checked a box on the Questionnaire giving the agency permission to disclose her identity to her employer. See id. at 1160.
The Court rejected the assertion that ambiguities should be construed against the drafter, reasoning that such a rule would “undermine the remedial scheme Congress adopted” and would encourage employees “to avoid filing errors by retaining counsel, thereby increasing both the cost and the likelihood of litigation.” Id. Instead, the Court held that documents filed by an employee “should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies.” Id.
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

The United States Court of Appeals for the Third Circuit had an opportunity to apply the Holowecki standard in Holender v. Mutual Industries North Inc., 527 F.3d 352 (3d Cir. June 3, 2008). As in Holowecki, the EEOC in Holender had not treated the plaintiff’s filings as a charge, but had filed an amicus brief in which it took the position that it should have. The court noted that Holowecki appeared to give some deference to the EEOC’s belief that the filing in question was a charge, but the Third Circuit found it unnecessary to reach the issue of deference because de novo review led to the conclusion that the filing constituted a charge. Holender, 527 F.3d at 356 n. 2 (quoting Holowecki, 128 S.Ct. at 1159).
The court explained that the plaintiff used an EEOC Form 5, which is entitled “Charge of Discrimination,” and that the form contains multiple references to itself as a “charge.” Id. at 356. The court also noted that the plaintiff’s accompanying affidavit referred to the “instant charge [filed] on behalf of all persons similarly situated,” and reasoned that the latter portion of this statement made clear that the plaintiff sought legal relief. Id.
The court rejected an argument that the plaintiffs repeated use of the term “complaint” in the filed documents created an ambiguity that required a different result, although EEOC regulations define “complaint” as information that is not a charge but alleges discrimination. See Id. at 356 n. 3. The court also rejected the defendant’s argument that a more stringent standard should apply where the plaintiff had counsel, holding that “[t]here is no need to require that counseled submissions to the EEOC contain some magic combination of words explicitly seeking agency action. A charge, submitted by counsel or not, may imply such a request.” See Id. at 357.
*17 This Court has also had occasion to apply the Holowecki standard in Fava-Crockett v. Boehringer Ingelheim Pharm., Inc., No. 08cv0196, 2008 U.S. Dist. LEXIS 34955 (W.D.Pa. Apr. 29, 2008) (Schwab, J.). The Fava-Crockett plaintiff, through counsel, filed a six-paragraph letter entitled “Charge of Discrimination,” accompanied by an Intake Questionnaire. This Court quoted Holoweckl ‘s instruction that filings should be construed to protect the employees rights and statutory remedies and concluded that “the ‘charge of discrimination,’ which happens to be written in the letter format, along with supporting documentation, clearly satisfied the EEOC’s minimum requirements for a charge.” Fava-Crockett, 2008 U.S. Dist. LEXIS 34955, at *7-8.

Under this line of authority, the issue for decision is whether the documents filed by Plaintiffs can be “reasonably construed” under permissible rules of construction as an implied request for action. This presents a close question.
Plaintiffs all filed a General Information Questionnaire, a General Intake Questionnaire and a Discharge Intake Questionnaire. The General Information Questionnaire concludes with the statement, “All charges must state an issue which is what happened to you. You must state what protected class you fall under which is the basis for discrimination.” (emphasis added). It then instructs the person completing the form to “[c]heck the appropriate space for issues and class.” Each of the Plaintiffs checked “Discharge” in the space provided under “Issues” and checked “Age (40+)” in the space provided under “Protected Class(es).” Significantly, Holender did rely in part to references in the typewritten form that referred to the form as a “charge.”
Plaintiff Campbell, moreover, indicated that he had already sought assistance from an attorney in this matter, resulting in an ongoing consultation. The ongoing involvement of counsel would suggest to an objective reader that the filer was seeking to activate the agency’s remedial processes, rather than merely seeking information from the EEOC. Similarly, Plaintiff Austin also indicated that she had consulted counsel. Although she did not indicate that the consultation was ongoing, she did indicate that her attorney thought she “had a case for age ... discrimination,” which also tends to support the conclusion to an objective reader that she was looking to activate the EEOC’s processes rather than merely seeking information.
Significantly, unlike in Holowecki and Holender, where the EEOC did not treat the filed documents as a charge by activating its dispute resolution processes, in the instant case, the EEOC did construe the filed documents as charges and did activate its dispute resolution processes. Moreover, Joseph Hardiman, the Director of the Pittsburgh Area Office of the EEOC, has sworn an affidavit in which he states that the EEOC “regards a completed General Information Questionnaire, a completed General Intake Questionnaire or a completed Discharge Intake Questionnaire as independently satisfying the above enumerated charge requirements,” that “[t]he receipt of one or all of the completed Questionnaires described above would indicate to EEOC that the Charging Party manifested a clear intent for the
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

EEOC to act on his or her behalf with respect to the complained of acts by the Respondent,” and that “the EEOC deems its receipt of any of the completed questionnaires as the filing date of a charge when received at the EEOC Field Office.” (Affidavit of Joseph M. Hardiman III, at 2.)
*18 Mr. Hardiman further states that the documents filed by the Plaintiffs in this case “contained all five categories of information necessary under the regulation to qualify as a charge.” Id. He further states that upon receipt of the Plaintiffs’ Questionnaires, the EEOC assigned a charge number docketing the Questionnaires and “began the process of working toward the completion of EEOC Form 5,” which he describes as “a document prepared by EEOC, entitled Charge of Discrimination, which briefly summarizes in three to four paragraphs the contents of the Questionnaires into what is known at EEOC as a ‘perfected charge.’ ” Id. at 2-3. Lastly, he asserts that for purposes of assessing the timeliness of charges, EEOC looks to the date the Questionnaires were received, not the date that the charging party signed the perfected charges. See id. at 3.
Ultimately, as in Holowecki, the EEOC’s determinations as expressed in the Hardiman affidavit “is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.” Holowecki, 128 S.Ct. at 1159.
The dicta in Holowecki suggesting that a different result might have been obtained viewing the Questionnaire at issue there in isolation does not compel a different result here. The forms are not the same. In Holowecki, the one-page Form 283 completed by the Plaintiff only referred to a “charge” in the context of asking whether the plaintiff had ever filed an EEOC charge in the past. Moreover, the Holowecki form had a Privacy Act Statement on the back that stated that the form’s purpose was to determine facts relevant to the agency’s jurisdiction over “potential charges” and to provide “pre-charge counseling as is appropriate.”
In contrast, Plaintiffs’ General Information Questionnaires provide that “[a]ll charges must state an issue which is what happened to you,” and provides a space for an issue to be stated. By providing responsive information stating an issue, the Plaintiffs satisfied this requirement. Moreover, the Holowecki plaintiff was in a continuing employment relationship that could have been jeopardized by the initiation of EEOC proceedings, a fact that would make it more likely that the questionnaire at

issue was merely a request for information. In contrast, Plaintiffs’ Questionnaires all indicated that they had been discharged.
Because the Questionnaires filed by Plaintiffs Rupert, Austin and Campbell, permissively construed to protect the employee’s rights and statutory remedies as instructed in Holowecki, are properly deemed charges and were filed within the 300 day period, timeliness does not provide a basis for granting Defendant’s Motions for Summary Judgment as to these three Plaintiffs.
2. Equitable Tolling Provides an Alternative Basis for Finding that Plaintiffs Rupert and Austin Filed Timely Charges with the EEOC. *19 Plaintiffs Rupert, Austin and Campbell argue in the alternative that even if the Questionnaires were not deemed charges, equitable tolling would apply during the period after the Questionnaires were filed during which the EEOC delayed preparing the perfected charges. The burden of proof falls on Plaintiffs as the party asserting equitable tolling. See Courtney v. LaSalle Univ., 124 F.3d 499, 505 (3d Cir.1997).
Analysis properly begins with the binding decisions of the United States Court of Appeals for the Third Circuit. In Kocian v. Getty Ref’g & Marketing Co., 707 F.2d 748 (3d Cir.1983), overruled on other grounds, Colgan v. Fisher Sci. Co., 935 F.2d 1407, 1414 (3d Cir.1991) (en banc), the plaintiff twice visited the EEOC office before the expiration of the limitations period. On the second visit, she, her lawyer and an EEOC intake officer began drafting but did not complete a charge. The next day, the EEOC officer called plaintiff to read her the completed charge, indicating that he would mail it to her for signature, which he did on the 181st day, one day after the end of the filing period. His letter enclosing the perfected charge informed the plaintiff that she must return the signed charge promptly because “a charge must be filed within the time limitation imposed by law.” Kocian, 707 F.2d at 753.
The plaintiff, however, did not immediately sign and return it, but spent “well over a week” making corrections to the proposed charge, sending a revised charge to the EEOC on the 194th day, asking that the EEOC either use that charge or draft another reflecting the corrections. Id. at 754. The EEOC did draft a revised charge, which it mailed on the 201st day, which plaintiff returned by mail on the 205th day and which the EEOC received on the
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

230th day.
Significantly, the plaintiff did not dispute that she initially knew that she must comply with the 180 day limitations period. She argued, however, that the EEOC’s statement in its letter mailed on the 181st day led her to believe that it was applying a 300-day rather than a 180-day filing limitations period.
The court of appeals explained that equitable tolling “may be appropriate if (1) the defendant actively misled the plaintiff, (2) if the plaintiff has ‘in some extraordinary way’ been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.” Kocian, 707 F.2d at 753. It held, however, that the plaintiff had not demonstrated the kind of “extraordinary” circumstances that justify equitable tolling. Id. at 753.
Significantly, the court noted that the EEOC counselor had not mailed the charge to the plaintiff until the 181st day. See id. at 754. The court stated that had the plaintiff “simply signed and returned the charge to the EEOC without further delay, a different picture might have been presented.” Id. In that case, the court explained, the plaintiff:
*20 could have argued that the fact that the charge was several days past the 180 day limit was more because of bureaucratic delay than because of her own neglect. Indeed, she would have essentially completed all of her responsibilities in filing the charge, except for formally signing it, within 180 days.
Id.; but see Liszewski v. Moyer Packing Co., No. 06-3558, 2007 WL 3133050, at *2 (3d Cir. Oct.29, 2007) (unpublished opinion) (non-precedential decision suggesting that EEOC delay in processing charges is not an extraordinary circumstance supporting equitable tolling in the absence of EEOC deception or misinformation).
Kocian thus found that “[t]he crux of the equitable tolling argument thus becomes whether the language of the letter of [the 181st day] misled [the plaintiff] to delay further the filing of her formal charge.” Id. The court found that the letter, which stated, “Because a charge must be filed

within the time limitation imposed by law, I urge you to [review, sign, and return the charge] as soon as possible,” did not mislead the plaintiff where it contained no false statement, but “merely advised [the plaintiff] to proceed expeditiously. It did not give her any reason to believe that the EEOC considered the enclosed charge to be formally filed and that she was thus free to make corrections without endangering the timeliness of her charge.” Id.
The court indicated that the plaintiff’s arguments “would be more appealing if she had been an inexperienced litigant proceeding pro se.” Id. at 755. The court noted cases holding that “equitable tolling is particularly appropriate in cases involving ‘lay persons unfamiliar with the complexities of the administrative procedures,” distinguishing them from cases such as the one before it involving litigants “who are represented by counsel.” Id. The court concluded:
In this case [the plaintiff] admitted that she knew of the 180-day limitations period because she had filed a charge against a previous employer. We presume that her lawyer knew of the statute of limitations as well. We see no misrepresentations on the part of the EEOC that could have cause Ms. Kocian’s delay. We therefore see no justification for equitable tolling.
Id.; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584 (3d Cir.2005) (explaining that “running throughout the equitable estoppel cases is the obligation of the plaintiff to exercise due diligence to preserve his or her claim” and holding that the plaintiff was not entitled to equitable tolling based upon having received allegedly erroneous advice from the EEOC where he took no steps to attempt to follow such advice).
In the wake of Kocian, several district courts within the Third Circuit have considered the appropriateness of equitable tolling in cases of the EEOC’s bureaucratic delay. In Curtis v. Tyco Retail Healthcare Group, No. 06-4302, 2007 WL 1545613 (E.D.Pa. May 24, 2007), relied on by Plaintiffs herein, the plaintiff’s attorney had first contacted the EEOC in September 2004 within the 300 day period, enclosing a completed Discipline Questionnaire and requesting the commencement of an
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

investigation into plaintiff’s discharge. The EEOC sent him a number of additional questionnaires to complete, including an Information Questionnaire that was completed and returned to the EEOC in December 2004, still within the 300 day period. The EEOC did not send him a formal charge for review and signature and did not schedule an interview until November 2005, fourteen months after the initial contact, eleven months after the completed Information Questionnaire was returned and well after the expiration of the 300 day period. At that interview, the inspector began drafting, but did not complete, a formal charge. When the inspector did not complete the charge, the plaintiff asked for and received a copy, although this was not the EEOC’s typical practice. The plaintiff completed the copy and returned it signed within ten days of the meeting.
*21 The plaintiff asserted that under the EEOC’s internal procedures, preparation and service of the charge were the responsibility of the EEOC, not the plaintiff. The plaintiff also asserted that he had periodically followed up with the EEOC regarding the status of his claim and had been assured by the EEOC that the September Questionnaire “stopped the clock” and that the defendant would not be able to raise an issue about timeliness.
The United States District Court for the Eastern District of Pennsylvania concluded that the Questionnaires submitted within the 300 day period “would lead a reasonable person to conclude that Plaintiff intended to activate the machinery of Title VII” under the pre-Holowecki authority of Bihler v. Singer Co., 710 F.3d 96, 99 (3d Cir.1999). See Curtis, 2007 WL 1545613, at *5. The court found that this conclusion was “bolstered” by the EEOC’s determination that a charge had been timely filed. Id.
Significantly for present purposes, however, the court held that even if it were to conclude that a charge had not been timely filed, the plaintiff would still be entitled to equitable tolling. See id. The court noted that timely filing with the EEOC is not a jurisdictional prerequisite to suit in federal court but rather is subject to “ ‘waiver, estoppel, and equitable tolling.’ ” Id. (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234(1982)).
The court noted that the EEOC told the plaintiff on several occasions that the defendant would not be able to raise a timeliness objection, and explained that “a plaintiff may justifiably rely on formal communications with the EEOC.” Id. (quoting Guzelin v. Drexel Univ., No.

98-3004, 1999 WL 153720, at *4 (E.D.Pa. Mar.19, 1999)). The court also cited Jones v. Eagle Indus. Hygiene Assocs., Inc., No. 04-1184, 2004 WL 1576652, at *2-3 (E.D.Pa. July 14, 2004) for the proposition that equitable tolling applies where the EEOC fails to send a plaintiff the formal charge for review and signature within the limitations period. See id. Thus the court held:
[E]quitable tolling may be applied where the EEOC led the grievant to believe that filing a charge would be proper even though the limitations period had passed or where any delay in filing the charge was due to the EEOC’s own “bureaucratic delay.” Plaintiff alleges that any delay in filing the final charge was due to the EEOC’s delay in scheduling an intake appointment. Once he finally met with an EEOC representative, he promptly completed the charge form and submitted it to the EEOC. This set of facts, if proven, would entitle him to equitable tolling and, as such, defeats a Motion to Dismiss.
Id.
As suggested by the Curtis court, Jones v. Eagle Indus. Hygiene Assocs., Inc., No. Civ. A. 04-1184, 2004 WL 1576652 (E.D.Pa.2004), had previously reached a similar conclusion.
Likewise, in Gulezlan v. Drexel Univ., No. Civ. A. 98-3004, 1999 WL 153720 (E.D.Pa.1999), the court also found that the EEOC’s bureaucratic delay was the kind of extraordinary circumstance supporting equitable tolling, notwithstanding the fact that the plaintiff was represented by counsel in the EEOC proceedings. The court noted that while the court of appeals had declined to apply equitable tolling in Koclan, the Koclan court had expressly stated that the result might be different if the plaintiff’s late filing had been due to bureaucratic delay rather than her own neglect. Id. Ultimately, the Gulezlan court held:
*22 Plaintiff was diligent in his interaction with the EEOC. He was led to believe at each turn from February 2, 1995 that he was
16

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

properly following EEOC procedures. He went to the EEOC on February 16, 1995 for the purpose of filing a charge. But for the bureaucratic delay in providing the initial requested appointment and in processing plaintiff’s claim when he did appear, he clearly could have filed a timely charge. That he was prevented from doing so for reasons of bureaucratic delay beyond his control is a sufficiently extraordinary circumstance to warrant the application of equitable tolling from February 16, 1995 to the filing of the charge.
Id.
Although the court noted the distinction some courts have drawn between unrepresented plaintiffs and those represented by counsel, the court concluded that a review of the cases shows that filing in the last few days of the limitations period is not unusual and that calling twelve days before the end of the period to schedule an appointment three days before the end of the period is not per se dilatory. See id. at *4 n. 4.
To similar effect is Altopedia v. Memorex Telex Corp., 834 F.Supp. 800 (E.D.Pa.1993) (“Unlike the plaintiff in Kocian, plaintiff here made a good faith effort to file the charge within the 180 day time period. In effect, everything except signing the charge had been completed within that time period. Thus, plaintiff successfully asserts that there were extraordinary circumstances that prevented him from filing on time. In this case it was the bureaucratic delay of the PHRC which requested plaintiff to sign the charge on the 181st day.”).
Although Defendant has cited no authority on this issue, authority exists that would preclude equitable tolling in the context of employment discrimination charges where the plaintiff was represented by counsel. See, e.g., Jones v. Baskin, Flaherty, Elliot & Mannino, P.C., 738 F.Supp. 937 (W.D.Pa.1989) (Mencer, J.); but see Curtis, 2007 WL 1545613; Gulezian, 1999 WL 153720. Indeed, Kocian itself collected cases supporting this proposition, noting that the plaintiffs arguments “would be more appealing if she had been an inexperienced litigant proceeding pro se.” See Kocian, 707 F.2d at 755. Nonetheless, the Kocian court opined that a different result (i.e., a result allowing

equitable tolling) might have been presented if the represented plaintiff had promptly returned the charge when received. See id. at 754. Kocian relied on the plaintiff’s representation by counsel in the context of rejecting the plaintiff’s argument on the issue of whether EEOC misrepresentation led her to delay filing the charge, and not in considering the issue of EEOC bureaucratic delay. This is a distinction that has some logical appeal in this particular context, as a represented party is not as likely as an unrepresented party to be misled by EEOC misrepresentations, but is not necessarily in a better position to avoid agency bureaucratic delay.
*23 Also, the court of appeals has rejected the notion that representation by counsel precludes equitable tolling based upon an employer’s misrepresentations as to the facts of the employee’s termination. See Meyer v. Riegel Corp., 720 F.2d 303, 308-09 (3d Cir.1983). In doing so, the court distinguished cases supporting the proposition that equitable tolling may not be invoked where plaintiff had consulted a lawyer thus:
[T]hey for the most part stand for the laudable notion that a plaintiff who has consulted with an attorney about a potential discrimination claim will not get away with complaining that he failed to understand the requirements and implications of the statute. Unlike plaintiffs in those cases, plaintiff here does not base his argument for equitable tolling on ignorance of law.
Id.; see also Miller v. Beneficial Management Corp., 977 F.2d 834, 845 n. 6 (3d Cir.1992).
To the extent that Plaintiffs here base their equitable tolling argument on the EEOC’s bureaucratic delay, it is not based on ignorance of the law, and equitable tolling is therefore available regardless of whether they were represented by counsel.
Plaintiff Rupert has adduced evidence sufficient to create a dispute of fact as to whether the EEOC’s bureaucratic delay prevented his timely filing of the perfected charge so as to support equitable tolling. Plaintiff Rupert executed his Questionnaires on October 25, 2006 (26 days before the expiration of the 300 day period), by letter
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

dated November 8, 2006 the EEOC scheduled a telephone appointment to file a charge for November 30 (10 days after the expiration of the 300 day period), by letter dated November 30, 2006, the EEOC provided the Form 5 for his execution and asked him to return it along with additional information within thirty days, and he in fact executed the Form 5 five days later on December 5, 2006 (15 days after the expiration of the 300 day period). Joseph Hardiman, Director of the Pittsburgh Area Office of the EEOC, avers that the EEOC is responsible for preparing the Form 5. (Hardiman Affidavit, at 2-3.)
Applying the reasoning of Kocian, this evidence is sufficient to allow a reasonable factfinder to conclude that the delay between the filing of the Questionnaire and the filing of the perfected charge is attributable to the EEOC’s “bureaucratic delay.” Further, the fact that the Form 5 was executed by Plaintiff Rupert five days after it was mailed by the EEOC (or, if one assumes three days for mailing, within 48 hours of receipt) is sufficient to allow a reasonable factfinder to conclude that Plaintiff Rupert was sufficiently diligent to be entitled to equitable tolling. Accordingly, equitable tolling provides an alternate basis for denying Defendant’s Motion for Summary Judgment as to Plaintiff Rupert on the issue of timeliness.
Plaintiff Austin executed her Questionnaires on November 2, 2006, 18 days before the expiration of the 300 day period. The EEOC did not send a letter scheduling her appointment to meet with an investigator to prepare the formal charge until December 6, 2006 (16 days after the 300 days expired), and the EEOC scheduled the appointment for January 9, 2007 (50 days after the period expired). By letter dated January 8, 2007 (49 days after the period expired), the EEOC sent EEOC Form 5 (which is titled Charge of Discrimination) to Ms. Austin for signature, requesting that she return it along with the answers to various questions within 30 days. Plaintiff Austin executed the Form 5 and prepared the answers to the EEOC’s questions, returning them to the EEOC by letter dated January 29, 2007 (21 days after the date of the EEOC’s letter enclosing the charges, nineteen days before the date that the EEOC indicated they must be returned by, 70 days after the expiration of the 300 day period, and 88 days after executing the Questionnaires).
*24 As with Plaintiff Rupert, the time period prior to Plaintiff Austin’s receipt of the Form 5 is fairly attributed to the EEOC’s bureaucratic delay. However, Austin’s Form 5 was mailed by the EEOC by letter dated January 8, 2007 and not executed by Plaintiff Austin until January

29, 2007, 21 days later. Clearly, more time elapsed after the EEOC’s mailing of the Form 5 than the thirteen day delay that Kocian suggested did not to reflect the kind of diligence required for equitable tolling. It follows that 21 days similarly is too long. Given that Plaintiffs bear the burden of proof as to equitable tolling, they have not adduced evidence sufficient to create an issue as to whether the 21 days after mailing of the Form 5 is attributable to the EEOC’s bureaucratic delay.
This does not end the inquiry, however. Rather, as in Kocian, the crux of the equitable tolling argument in regards to Plaintiff Austin becomes “whether the language of the letter of [January 9, 2007] misled [Plaintiff Austin] to delay further the filing of her formal charge.” Kocian, 707 F.2d at 754. On this issue, Plaintiff Austin would appear to have a stronger argument than the argument advanced by the unsuccessful Kocian plaintiff. The letter received by the Kocian plaintiff merely urged the plaintiff to return the charge as soon as possible because a charge must be filed within the time limitations imposed by law. In contrast, the letter sent to Plaintiff Austin stated, “PLEASE COMPLETE AND HAVE THE ABOVE-REQUESTED INFORMATION SUBMITTED TO OUR OFFICE WITHIN 30 DAYS OR YOUR DISCRIMINATION CHARGE MAY BE DISMISSED.” Unlike the letter in Kocian, which the court found not to be misleading, this letter could lead a reasonable layperson to believe that a charge submitted within 30 days would be timely. Thus, were Plaintiff Austin unrepresented, she would be entitled to rely on this formal communication from the EEOC.
However, an argument that Austin was misled by the EEOC into believing that a formal charge filed within 30 days would be timely is clearly based upon her misunderstanding of the requirements of the ADEA and thus ignorance of the law. In such a case, Meyer and Kocian raise an issue as to whether equitable tolling is appropriate to the extent that Plaintiff Austin was represented by counsel.
However, Plaintiff Austin has adduced evidence sufficient to create a factual dispute as to the extent to which Plaintiff Austin was represented by counsel. Austin does not dispute that she consulted with legal counsel prior to signing on February 15, 2006 the Separation Agreement and Release provided by Defendant, and that this counsel advised her that she had a case for age discrimination. (Joint Concise Statement of Material Facts Accompanying Defendant’s Motion for Summary Judgment as to Plaintiff Linda K. Austin, at 5.) It is also
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

not disputed that Austin contacted Plaintiffs’ counsel by November 2, 2006, and that, after filling out her EEOC Questionnaires on November 2, 2006, she left them with a secretary at the Obermeyer firm (i.e., one of Plaintiffs’ counsel of record in this case). Id., at 6-7.
*25 Austin testified, however, that after that, she did not submit any additional materials, including the January 29, 2007 letter enclosing her Form 5, through counsel, but rather did everything at home, including preparing the January 29, 2007 cover letter and the answers to the EEOC’s questions contained therein. (Transcript of Linda Austin, at 21-22.) Similarly, she testified that all EEOC communications were directed to her, not to her counsel. Id. She also states that while she was given the Questionnaires by counsel and completed them in counsel’s conference room, she completed them entirely on her own without any assistance from counsel, who declined to advise her or consult with her regarding the content of the Questionnaires. Resolving this factual dispute in favor of Plaintiff Austin, the non-moving party, it appears that while she had consulted counsel prior to initiating the EEOC proceedings, she was not represented by counsel in the EEOC proceedings and was not assisted or advised by counsel as to the execution and return of the Form 5.
In Holowecki, the United States Supreme Court rejected an argument that ambiguities in a charge should be construed against the drafter, holding that such a rule would undermine the remedial scheme adopted by Congress by encouraging individuals to avoid filing errors by retaining counsel, thereby increasing both the cost and the likelihood of litigation. Federal Express Corp. v. Holowecki, --- U.S. ----, ----, 128 S.Ct. 1147, 1160, 170 L.Ed.2d 10 (2008). The same result sought to be avoided by Holowecki would flow from a rule holding that a plaintiff who consults an attorney prior to initiating EEOC proceedings, but is not represented or provided legal assistance by counsel in those proceedings, is nonetheless deemed represented by counsel when determining the reasonableness of plaintiff’s reliance on the EEOC’s misrepresentations for equitable tolling purposes.
In sum, Plaintiff Austin has adduced evidence sufficient to allow a reasonable factfinder to conclude that she was not represented by counsel at a time or in a manner or extent that would bar the application of equitable tolling during the 30 days within which the EEOC instructed her to return the Form 5. Equitable tolling therefore provides an alternate ground upon which to deny Defendant’s Motion for Summary Judgment as to Plaintiff Austin on

the issue of timeliness.
Plaintiff Campbell learned of his termination by at least February 27, 2006, and so the 300 day period ran on December 26, 2006. Plaintiff Campbell executed his Questionnaires on November 6, 2006 (fifty days before the expiration of the 300 day period). Plaintiff Campbell executed the Form 5 on March 12, 2007 (76 days after the expiration of the 300 day period). Plaintiff Campbell does not point to any record evidence that would indicate what happened in the 126 days between his filing of the Questionnaires and his execution of the Form 5. Significantly, Plaintiff Campbell does not cite to record evidence indicating when the Form 5 was mailed to him for execution. The 126 days between the execution of Campbell’s Questionnaires and his execution of the Form 5 is considerably longer than the corresponding period for the other four Plaintiffs (88 days for Austin, 41 days for Rupert, 52 days for Hunt, and 66 days for Bittner).
*26 On this record, Plaintiff Campbell has failed to adduce evidence that would create a dispute of material fact as to whether the 126-day delay between his execution of the Questionnaires and his execution of the Form 5 is fairly attributable to bureaucratic delay on the part of the EEOC. Accordingly, equitable tolling does not provide an alternate ground for denying Defendant’s Motion for Summary Judgment against Plaintiff Campbell on the issue of timeliness.
B. The Perfected Charges Filed by Rupert, Austin and Campbell Were Not Insufficient to as a Matter of Law to Exhaust Administrative Remedies on Their Disparate Impact Claims. Failure to exhaust administrative remedies is an affirmative defense as to which Defendant bears the burden of proof. See Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997) (applying Title VII); Spangler v. Moderne Glass Co., No. 6-1394, 2008 WL 919693, at *3 (W.D.Pa. April 3, 2008) (Ambrose, CJ.) (applying ADEA); see also Ray v. C.O. Kertes, 285 F.3d 287, 292 (3d Cir.2002) (stating in dicta that courts including the Third Circuit treat exhaustion requirement under Title VII and the ADEA as affirmative defenses).
The requirement that a plaintiff exhaust administrative remedies by filing a charge with the EEOC is an “essential part[ ] of the statutory plan, designed to correct discrimination through administrative conciliation and persuasion if possible, rather than by formal court action.”
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir.1976). While “[t]he law is clear that civil litigation ... is not available to one who has entirely bypassed the EEOC thereby depriving it of an opportunity to investigate and conciliate, ... EEOC charges should be liberally construed because they are preferred by laymen and are usually prepared without legal assistance.” Canavan v. Beneficial Fin. Corp., 553 F.2d 860, 863-64 (3d Cir.1977). “Because failure to exhaust administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving that the plaintiff has failed to exhaust administrative remedies.” Williams v. Runyon, 130 F.3d 568 (3d Cir.1997).
Balancing these considerations, courts have crafted the following test: “the parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the Commission.” Ostapowicz, 541 F.2d at 398-99; Hicks v. ABT Assocs., 572 F.2d 960, 966 (3d Cir.1978). Thus, the scope of a civil action is not limited to the EEOC’s actual investigation. Hicks, 572 F.2d at 966. “If the EEOC’s investigation is unreasonably narrow or improperly conducted, the plaintiff should not be barred from his statutory right to a civil action.” Hicks, 572 F.2d at 966.
In Canavan, the plaintiff filed an EEOC charge alleging discrimination in assignment of seniority status. In her charge, the plaintiff named one entity as the discriminating employer, but also listed an additional entity as having discriminated against her. The United States Court of Appeals for the Third Circuit explained that it was at least arguable that a reasonable investigation would have uncovered the second defendant’s involvement. See Canavan, 553 F.2d at 864. Significantly, in reaching this conclusion, the court looked to information submitted to the EEOC by the second defendant, in which the second defendant indicated that it was the entity that had calculated the plaintiff’s seniority. See id.
*27 In Hicks, the plaintiff filed an EEOC charge that alleged race discrimination in “broad terms.” Hicks, 572 F.2d at 965. The EEOC in fact investigated only race discrimination as a result of his charge. His civil action, however, also included sex discrimination. The United States Court of Appeals for the Third Circuit rejected the defendant’s argument that it was appropriate to go beyond the scope of the charge only to allow consideration of new

facts uncovered by the EEOC investigation and that the investigation thus set the outer limit to the scope of the civil complaint. Id. at 966. Noting that the defendant did not have a right to conciliation and had shown no prejudice from expanding the scope of the civil action beyond the EEOC investigation, the court concluded that the standard announced in Ostapowicz (i.e., a rule focused on “the investigation which can reasonably be expected to grow out of the charge” irrespective of the actual investigation) “is a fair compromise of the interests expressed in Title VII in informal settlement as a preferred method of conflict resolution and the employee’s right to a judicial forum once the Commission has finished processing a charge.” Id.
The court held that the record contained a genuine issue whether the EEOC investigation would have included examination of sex discrimination claims. See id. While the court noted that “courts should presume the regularity of the EEOC’s investigation,” the plaintiff had adduced evidence that he had never been contacted by the EEOC investigator in the course of the investigation, contrary to the EEOC’s own regulations, and further that if he had been contacted, he would have told the investigator that sex discrimination was a cause of the disparate treatment alleged in his charge. Id.
The court explained that:
A finding that the EEOC would have discovered a claim for sex discrimination in the course of a reasonable investigation does not itself meet the standard of Ostapowicz. This evidence merely rebuts the presumption that the scope of the actual investigation is “what can reasonably be expected to grow out of the charge of discrimination.”
Id. at 967. Rather, the court cautioned that:
The district court must further find that the sex discrimination claims which would have been uncovered were reasonably within the scope of the charge filed with the EEOC. Otherwise, the charging party could greatly expand an investigation simply by alleging new and different facts when he was contacted by the Commission following his charge.
Id.
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

On this issue, that court noted that “the charge in broad terms complained of ‘disparate treatment.’ ” Id. It also noted that there was “a close nexus between the facts supporting the claims of race and sex discrimination,” in that both his sex and his race discrimination claims arose from allegations that he was subjected to stricter conditions of employment and disparate salary levels, the “same acts.” Id. at 965, 967. Where the record was devoid of evidence of the investigatory practices of the agency and thus of “evidence on which the court can conclude whether a reasonable inquiry would have reached [the plaintiff’s] allegations [of sex discrimination],” the court of appeals held that the defendant had not met its burden of showing an absence factual issues regarding the plaintiff’s failure to exhaust administrative remedies. Id.
*28 The United States Court of Appeals for the Third Circuit again focused on consequences of discrimination rather than legal theories in Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir.1984). The Howze plaintiff had filed a charge alleging discriminatory failure to promote. In her civil litigation, she sought to raise an additional theory in support of this claim, specifically that she was discriminated against in retaliation for activities on behalf of the Black Caucus. See Howze, 750 F.2d at 1212. The court held that the new retaliation claim “may fairly be considered [an] explanation[ ] of the original charge” and was within the scope of the reasonable investigation that would be expected to grown from the plaintiff’s charge of discriminatory failure to promote. Id.; see also Galvls v. HGO Servs., 49 F.Supp.2d 445, 449 (E.D.Pa.1999) (“legal analysis turns on whether there is a close nexus between the facts supporting each claim or whether additional charges made in the judicial complaint may fairly be considered explanations of the original charge or growing out of it”). The court explained that “[w]hether the actual EEOC investigation uncovered any evidence of retaliation is of no consequence.” Howze, 750 F.2d at 1212.
In Antol v. Perry, 82 F.3d 1291 (3d Cir.1996), however, the court of appeals found that a claim of gender discrimination was not within the scope of the investigation reasonably expected to grow out of a charge alleging disability discrimination, despite the fact that investigation would have revealed that two women were promoted while a man was not. The court did not distinguish its prior decision in Hicks. The cases are distinguishable, however, in that there was evidence that the Hicks plaintiff would have so informed the EEOC about his sex discrimination claim if asked, while the

Antol plaintiff did not adduce such evidence. Antol, 82 F.3d at 1295.
Antol did distinguish the prior decision in Waiters v. Parsons, 729 F.2d 233 (3d Cir.1984), which held that a plaintiff’s suit based upon an act of retaliation occurring after the conclusion of the EEOC proceedings was not barred “because the core grievances in the suit filed and the earlier EEOC complaint were the same-retaliation.” Id. The Antol court held:

The specifics of his disability

discrimination charge do not fairly

encompass a claim for gender

discrimination merely because

investigation would reveal that [the

plaintiff] is a man and the two

employees who received the

positions are women. The

investigation focused, quite

properly we think, on the gravamen

of

[the

plaintiff’s]

complaint-disability discrimination.

Id. at 1296.

In Robinson v. Dalton, 107 F.3d 1018 (3d Cir.1997), the plaintiff had filed charges with the EEOC alleging both racial discrimination and retaliation in various decisions related to sick leave and promotion. In addition to the absences referred to in his EEOC charges, the plaintiff had an additional long absence that ultimately led the defendant to terminate his employment. The plaintiff brought his termination to the attention of the EEOC, but it refused to investigate the charge of retaliatory discharge because it concluded the complaint had not been timely filed.
*29 The United States Court of Appeals for the Third Circuit in Robinson noted the Ostapowicz “reasonably expected to grow” standard and its holding in Hicks that a plaintiff is not barred from raising in its lawsuit additional claims if the EEOC investigation is too narrow. See id. at 1025-26. The court of appeals remanded to the district court for evaluation of the reasonableness of the investigation. See id. at 1026. In doing so, it explained that its own review was hampered by the absence of the EEOC charges from the record. See id. It noted, however, that where the reasons given by the employer for the discharge included some of the same incidents referred to in the plaintiff’s prior charges, the court was unable to

21

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

understand why the EEOC declined to investigate the discharge. See id. The court provided the following guidance to the district court:

Factors the district court may

consider in making this

determination include 1) whether

the previous three complaints

alleged the same retaliatory intent

inherent in the retaliatory discharge

claim, 2) whether the subject of

these previous complaints were

used as a basis for the Navy’s

decision to terminate Robinson;

and 3) whether the EEOC should

have been put on notice of

Robinson’s claim of retaliatory

discharge

and

therefore

investigated that claim. In light of

our precedent, the court may also

want to reexamine whether there is

enough overlapping in Robinson’s

subsequent allegations with the

earlier complaints that this

discharge complaint fairly falls

within the scope of the earlier

complaints.

Id.

More recently, in Yhelka v. Dairy Farmers, No. 07cv1736, 2008 WL 598279 (W.D.Pa. Feb.29, 2008) (Schwab, J.), this Court held that a claim of retaliation could reasonably be expected to grow out of a charge wherein “the plaintiff stated that she believed she was fired because she was a female and because she fought for the position she held.” Id. at *2.

Based on this authority, the determination whether a claim is within the scope of the investigation reasonably expected to grow out of a charge should give weight to the fact that the claim in the charge and the new claim are based upon the same incidents, e.g., the same failure to promote or the same absences from work. See Hicks, 572 F.2d at 965; Robinson, 107 F.3d at 1026. However, identity of incidents by itself is not sufficient where the “core grievances” or “gravamen” of the claims are not the same, such as where the charge alleges disability discrimination and the new claim alleges gender discrimination, at least unless the plaintiff can adduce evidence indicating that the additional grievance would

have been brought to the attention of the EEOC during a reasonable investigation. Compare Antol, 82 F.3d at 1296 with Hicks, 572 F.2d at 966. Core grievances, however, are to be distinguished for these purposes from additional “legal theories” supporting or explaining the original charge that a particular incident was the result of discrimination. See Howze, 750 F.2d at 1212.
*30 Such a rule that focuses the exhaustion inquiry on the alleged consequences of the discrimination, rather than the alleged theory of discrimination, is supported by the statutory text of the ADEA as interpreted by the Supreme Court in recognizing a disparate impact cause of action. As the Court explained, Congress “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Smith v. City of Jackson, 544 U.S. 228, 234, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) (plurality opinion) (emphasis in original) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)). The Supreme Court found that the same statutory language giving rise to both disparate treatment and disparate impact theories, i.e., language prohibiting actions that “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s” race or age,” “focuses on the effects of the action on the employee rather than the motivation for the action of the employer.” Id. at 235-36 (emphasis in original).
Defendant argues that Plaintiffs’ charges are devoid of reference to any facially neutral policy, a required element of a disparate impact claim, but instead clearly allege intentional discrimination. It is true that disparate treatment and disparate impact are distinct legal theories of discrimination, with different elements of proof. Defendant cites no authority, however, for the assertion that a plaintiff’s charge must allege the elements of a prima facie case in order to exhaust administrative remedies. Such a rule could not be reconciled with the broader rule followed in this circuit that exhaustion is determined by the scope of the EEOC investigation that would reasonably be expected to grow out of the charge. Moreover, the court of appeals has recognized that a “pattern of employment discrimination” can fall within either framework, describing both theories as “systemic discrimination” and noting that plaintiffs need not choose between them until after completion of discovery. Lusardi v. Lechner, 855 F.2d 1062, 1064 n. 1 (3d Cir.1988).
Applying the authority discussed above, the core grievance set forth in Plaintiffs’ charges was that their terminations resulted from age discrimination. In this
22

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

case, Plaintiffs’ disparate treatment and disparate impact claims arise from the same incidents: their terminations. Whether these terminations resulted from discriminatory intent or a facially neutral policy with disparate impact is not the gravamen of their charges; it is merely a different theory explaining the conclusion that these specific incidents were the result of age discrimination.
The perfected charges filed by Plaintiffs Rupert, Austin and Campbell that were provided to Defendant suggested that the RIF fell disproportionately on older workers.2 It is undisputed that Plaintiffs Rupert and Austin were not told how or why they were selected for termination, and thus it is not surprising that their EEOC charges refer only to the generic reasons given to them by Defendant for the RIF, namely economic factors and downsizing. Such reasons for the conducting of the RIF, however, do not indicate or explain why or on what basis the employment of particular individuals was terminated while that of other individuals was not as part of the RIF. Faced with such circumstances and charges, it is reasonable to expect the EEOC to inquire or its investigation otherwise to address why and how particular individuals were selected for employment termination as part of the Defendant’s downsizing.

2

Plaintiff Rupert stated: “I believe that I was

discriminated against because of my age, 57, in

violation of the [ADEA] in that I, along with several

other associates in my age group, was discharged from

employment on the same day. Over the past six to eight

years, there has been a systematic downsizing of

employees in the 40-60 age bracket, with most of these

employees being in their 50’s. While focusing on older

employees, the respondent has terminated their

employment regardless of their work performance.”

Plaintiff Austin stated: “... I was released from

employment during what the respondent called a

‘downsizing,’ which included many employees who

were in my age group (50’s). Although General

Industrial did not have a good year, I believe that the

respondent was trying to get rid of older employees

who were making more money than younger

employees.”

Plaintiff Campbell stated: “The respondent has

engaged in a pattern of forcing older employees out,

while retaining younger employees with less

experience and seniority. I have been told that there

was a list of names of older employees to be let go,

and my name was on it.”

*31 In fact, in the course of the actual EEOC

investigations, the EEOC did so inquire, requesting that Defendant provide “[c]opies of the applicable policies, practices, or procedures relating to the act alleged to be discriminatory.” (Exhibit 14.) See Canavan, 553 F.2d at 864 (considering evidence submitted to the EEOC by the defendant in determining whether the plaintiff had failed to exhaust administrative remedies). In response to the charges of Plaintiffs Rupert and Austin, Defendant provided the EEOC with a copy of its Reduction in Force Guidelines for Terminations, which described the facially neutral ranking system based on the use of Success Factors.3 (Exhibits 14, 79). Although it is not clear from the record that the EEOC was provided with the Success Factors themselves in the actual investigation, it is reasonable to expect that the EEOC would have sought to obtain them since the Reduction In Force Guidelines provided by Defendant specifically referred to them. The Success Factors were multiple in nature and included characteristics such as “Driving Change,” “Openness and Flexibility” and acting “with a Long-Term Perspective.” (Exhibit 91, at Defendant R-04072. 04074, 04078.) While there is nothing improper or inappropriate about any such factors or characteristics, it is reasonable to expect that in the course of a reasonable investigation the EEOC would have considered or addressed the possibility that Defendant’s facially neutral policy resulted in a disparate impact on older workers as suggested in the charges filed by Plaintiffs Rupert, Austin and Campbell.

3

The Guidelines were also provided in the investigation

of the charges of Plaintiffs Hunt and Bittner. (See

Exhibits 77, 78.)

Moreover, as to Plaintiffs Austin, Hunt and Bittner, the EEOC resolved its investigations on the basis of their execution of Separation Agreements and Releases. (Exhibit B to Answer and Counterclaim.) Although the parties have not pointed to record evidence of the basis for the EEOC’s decisions as to Plaintiffs Rupert and Campbell, they executed the same or essentially similar Separation Agreements and Releases. Thus, there is at least an issue of fact presented as to whether the EEOC investigation was too narrow and whether, in the absence of executed Separation Agreements and Releases, the scope of the EEOC investigation that could reasonably have been expected to grow out of the Rupert and Austin’s charges would have considered or addressed any disparate impact of Defendant’s facially neutral policy.
Moreover, Plaintiff Rupert, when asked by the EEOC to
23

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

provide a copy of any written procedure or policy with respect to his discharge, stated: “I do not have a copy if, in fact, there is one. I suspect Defendant Corporate HR Department would be a source to locate one.” (Exhibit 14.) Similarly, when asked by the EEOC to provide information for an affidavit regarding “Respondent’s Explanation for the Alleged Harm and Its Policies and Practices,” Plaintiff Rupert did not rule out the possible existence of such a policy, stating only that “[t]he only explanation I received from the respondent was that I was being terminated due to company downsizing.” These statements by Plaintiff Rupert held open the possible existence of a neutral policy and also suggested to the EEOC that it should inquire of Defendant for such a policy, and thereby provide further record support that a claim of disparate impact arising from the application of such a policy was within the scope of a reasonable EEOC investigation of Plaintiff Rupert’s charge.
*32 As to Plaintiff Campbell, the parties have not cited to record evidence regarding the response filed by Defendant in his EEOC proceedings, or any evidence regarding the scope of the actual EEOC investigation of Campbell’s charge. However, Campbell’s charge alleged that Defendant “ha[d] engaged in a pattern of forcing older employees out, while retaining younger employees with less experience and seniority.” Moreover, Campbell also alleged that he was told that performance was the reason for this termination, and that “there was a list of names of older employees to be let go, and [his] name was on it.” Furthermore, the overall record suggests that the EEOC investigation may have been resolved on the basis of the EEOC’s conclusion that Campbell had waived his claims by executing a Separation Agreement and Release, which could explain why the EEOC’s actual investigation may have been narrow and may not have reached the issue of disparate impact.
Given that failure to exhaust administrative remedies is an affirmative defense as to which Defendant bears the burden of proof, in order to be entitled to summary judgment Defendant had the burden of adducing evidence that disparate impact was not within the scope of a reasonable investigation growing out of the charge. See In re Bressman, 327 F.3d 229 (3d Cir.2003) (to obtain summary judgment on an affirmative defense as to which the Defendant has the burden of proof, they had the burden of supporting their motions “with credible evidence ... that would entitle [them] to a directed verdict if not controverted at trial.”). In light of the circumstances presented including the absence of record evidence as to the scope of the actual EEOC investigation beyond

Campbell’s Charge of Discrimination and his Questionnaires, the determination as to the scope of the reasonable investigation cannot be made as a matter of law. Thus, Defendant’s motion for summary judgment on the basis of Campbell’s alleged failure to exhaust administrative remedies on a disparate impact claim should be denied.
A finding that Defendant is not entitled to summary judgment on Plaintiff Rupert, Austin and Campbell’s disparate impact claims is supported by the decisions of the United States Court of Appeals for the Second Circuit. In Brown v. Coach Stores, Inc., 163 F.3d 706 (2d Cir.1998), the plaintiff’s charge alleged disparate treatment in the form of failure to promote, stating that the employer had instead promoted dozens of non-minority employees and “scarcely any” minorities. Id. at 708. The court applied the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination” standard and found that the plaintiff’s disparate impact claim was “reasonably related to her failure to promote claims as we would expect that the EEOC, in investigating the complaint, would have assessed [the defendant’s] promotion policies and their effect on minority employees.” Id. at 712.
*33 Similarly, in Gomes v. Avco, 964 F.2d 1330 (2d Cir.1992), the plaintiff’s charge set forth a disparate treatment claim. His charge alleged that he was the only Portuguese employee in his job classification. It also alleged that the defendant had a rule requiring eight years of experience in order to qualify for promotion to skilled trades, but only in the context of arguing that the plaintiff in fact satisfied the eight-year rule. The court concluded that although the charge “most naturally supports a claim of intentional discrimination,”
[n]onetheless, once the EEOC investigated the case and found that [the plaintiff] did not satisfy the eight year rule, it would have been perfectly natural for the EEOC to question the necessity of the eight year rule itself. [The plaintiff’s] allegation that people with less experience than he (and thus less than eight years) were promoted ahead of him should have raised suspicion that there was no business justification for the rule. Given that [the plaintiff] had also
24

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

alleged that he was the only Portuguese in his job category, the EEOC could then have reasonably inquired as to whether this possibly unnecessary rule had a discriminatory impact on employees of Portuguese decent. Accordingly, we conclude that an investigation of [the plaintiff’s] disparate impact claim would reasonably have flowed from an investigation of his disparate treatment claim.

Gomes, 964 F.2d at 1334-35. The court distinguished the case from one where there were factual differences between to the two acts of discrimination, emphasizing that the plaintiff in contrast had “asserted two different theories of relief to remedy the particular incidents of discrimination [i.e., failure to promote] identified in Gomes’ EEOC complaint.” Id. at 1335.
The contrary conclusions reached by the non-binding decisions in Pacheco v. Mineta, 448 F.3d 783 (5th Cir.2006), Woodman v. WWOR-TV, 293 F.Supp.2d 381 (S.D.N.Y.2003), and Jackson v. Merck & Co., No. CIV. A. 99-CV-3069, 1999 WL 962522 (E.D.Pa.1999) (Kelly, J.) (unpublished opinion),4 are not persuasive. All three of these cases holding that plaintiffs failed to exhaust administrative remedies with respect to disparate impact claims are factually distinguishable in that in none of these cases was the EEOC actually made aware of the existence of the facially neutral policy during the course of the investigation. Clearly, where the defendant brings to the EEOC’s attention-as was done in the present case-the existence of the facially neutral policy in attempting to defend against a plaintiff’s charge of intentional discrimination, it is more likely that a reasonable EEOC investigation would consider or address the potential discriminatory impact of the policy than where the EEOC is unaware of the policy.

4

Jackson is further distinguishable in that plaintiffs

charge did not allege a pattern of discrimination, and, in

fact, mentioned other workers only in a way that tended

to refute a finding of disparate impact. Moreover, to the

extent that Jackson suggests that the standards

determining whether a complaint is sufficient to survive

a motion to dismiss apply to the determination of

whether a plaintiff has exhausted administrative

remedies, there is no basis for such an argument, which

is inconsistent with the “reasonable investigation”

standard and also overlooks the fact that most charges, unlike most federal complaints, are drafted by unsophisticated laypeople.
Moreover, the statutory framework created for analysis of disparate treatment cases recognizes that, at the outset of litigation, the reasons for the plaintiff’s discharge, which may include the application of neutral policies, are often unknown to the plaintiff. Thus, the plaintiff’s articulation of a prima facie case shifts the burden to the defendant to articulate a legitimate, non-discriminatory reason for the decision. Where the defendant does so during the administrative proceedings by pointing to a facially neutral policy used to select workers for a reduction in force, and where the charge has at least suggested that older workers were disproportionately affected by that reduction in force, it seems clear that the disparate impact of that policy on older workers is within the scope of a reasonable EEOC investigation.
*34 Accordingly, it is respectfully recommended that Defendant’s Motions for Summary Judgment on the disparate impact claims asserted by Plaintiffs Rupert, Austin and Campbell be denied.
C. The Perfected Charges Filed by Plaintiffs Austin and Campbell Exhausted Their Administrative Remedies with Respect to Class Claims. Defendant next argues for partial summary judgment on the ground that Plaintiffs Austin and Campbell failed to exhaust their administrative remedies on their ADEA class claims.5 This issue was initially raised by the Defendant in a Motion to Dismiss, which this Court denied as premature and without prejudice to Defendant raising it in a motion for summary judgment at the appropriate time. (Docket No. 26). The September 26, 2007 Case Management Order (Docket No. 28) indicates that Phase I of this case will address, inter alia, administrative remedy exhaustion as to disparate impact claims but no mention is made therein to administrative remedy exhaustion as to class claims. Nevertheless, the parties by their Stipulated Discovery Order dated December 3, 2007 (Docket No. 54) agreed that “the issue of whether the named plaintiffs failed to exhaust administrative remedies with regard to notice of a class claim is included within” Phase I. Also, this Court’s Order Referring Case to a Special Master (Docket No. 29) conferred on the Special Master power to rule by report
25

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

and recommendation on motions for summary judgment and on class related issues. Moreover, no party has objected to my ruling by report and recommendation on this issue. Thus, I do so as set forth below.

5

Defendant does not raise this issue as to Plaintiff

Rupert.

Failure to exhaust administrative remedies is an affirmative defense as to which Defendant bears the burden of proof. See Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997) (applying Title VII); Spangler v. Moderne Glass Co., No. 6-1394, 2008 WL 919693, at *3 (W.D.Pa. April 3, 2008) (Ambrose, CJ.) (applying ADEA); see also Ray v. C.O. Kertes, 285 F.3d 287, 292 (3d Cir.2002) (stating in dicta that courts including the Third Circuit treat exhaustion requirements under Title VII and the ADEA as affirmative defenses).
Under the single filing rule, an individual who has not filed an EEOC charge within the limitations period can join a class action without personally satisfying the exhaustion and filing requirements if the EEOC charge filed by the representative plaintiff who filed the class action alleged “class-based discrimination.” Communications Workers v. New Jersey Dep’t of Personnel, 282 F.3d 213, 217 (3d Cir.2002); accord Ruehl v. Viacom, 500 F.3d 375, 386 (3d Cir.2007) (“a single, representative complaint can achieve the notice and conciliation purpose of the EEOC filing, ‘[s]o long as class issues are alleged.’ ”); Lockardt v. Westinghouse Credit Corp., 879 F.2d 43, 53 (3d Cir.1989), overruled on other grounds as recognized by, Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1099 n. 10 (3d Cir.1995). Although the charge need not state specifically that it was being brought on behalf of others similarly situated, the charge must “notif[y] [the employer] that it allegedly discriminates against persons over forty years old as a class.” Lockardt, 879 F.2d at 53. “[A] plaintiff is not required to file a ‘class charge,’ but needs only to allege class issues that may subsequently form the basis for a ‘class action.’ ” Whalen v. W.R. Grace & Co., 56 F.3d 504, 507 (3d Cir.1995). “So long as class issues are alleged, a timely charge may serve as the basis for a class action.” Lusardi v. Lechner, 855 F.2d 1062, 1078 (3d Cir.1988).
*35 In Lusardi, the plaintiff’s EEOC charge alleged:
[The defendant] has engaged and is

continuing to engage in

employment practices related to

hiring, training, promotion and

termination of past, present and

future

employees

which

discriminate against persons such

as myself over forty as a class

particularly with respect to the

implementation of a reduction in

salaried work force.

Lusardi, 855 F.2d at 1078. The United States Court of Appeals for the Third Circuit held:

Although the EEOC charge does not use the words “similarly situated” or allege specifically that a class action is going to be brought, we fail to see how [the defendant] could claim prejudice by the bringing of a class action. The charge clearly notifies [the defendant] that it allegedly discriminates against persons over forty years old as a class. Accordingly, the charge provides sufficient notice to the parties to encourage meaningful conciliation, the purpose of requiring it. So long as class issues are alleged, a timely charge may serve as the basis for a class action.

Id.

More recently, in Ruehl, the court of appeals, while not directly confronted with the issue of whether allegations in an EEOC charge provided sufficient notice of class claims, did characterize the allegation that the defendant had perpetrated a “pattern and scheme of systematic discrimination against older workers” as a “class-wide allegation” applicable to a plaintiff who had not filed a timely EEOC charge. Ruehl, 500 F.3d at 389.

In contrast, in Lockardt, the EEOC charge “merely stated that [the defendant] terminated his position of employment on the basis of his age.” Lockardt, 879 F.2d at 53. Unsurprisingly, the United States Court of Appeals for the Third Circuit held that the “charge provided [the defendant] with neither explicit nor implicit notice of alleged of class-based discrimination,” and thus could not

26

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

provide the basis for the joinder of plaintiffs who had not exhausted their administrative remedies. Id.
A closer question was presented to the United States District Court for the Eastern District of Pennsylvania in Kresefky v. Panasonic Communications & Sys. Co., 169 F.R.D. 54 (E.D.Pa.1996). One of the EEOC charges in Kresefky alleged, “Fourteen (14) employees were affected [by the RIF] in my division (Marketing). Ten were within the protected age group.” Kresefky, 169 F.R.D. at 60. The court held:
Clearly, these charges were not sufficient to put defendants on notice of class claims against them. [The plaintiff who filed the above-quoted charge] is the only named plaintiff who even referred to other terminated employees within a protected group, and his charge is otherwise directed solely toward his own claims. By contrast, the charge which the Lusardi Court found to have provided adequate notice of class claims alleged that the defendant had engaged and was continuing to engage in specified discriminatory practices against past, present and future employees “such as” the named plaintiff, and referred to this group as class. Lusardi, 855 F.2d at 1078. [The plaintiff’s] allegation that ten of the fourteen employees terminated from the marketing department in which he worked were within the protected age group does not suffice to place defendants on notice of class claims in the face of his repeated references to his own performance, his own termination and the discrimination he personally suffered.
*36 Id.
To the extent that the court’s reasoning suggests that anything less than the Lusardi charge is insufficient, or that the charge must allege a “class claim,” it is overly broad and inconsistent with the guidance of the court of appeals indicating that the plaintiff need not file a “class

charge” but need only allege “class-based discrimination,” or “class issues,” or “notif[y] [the employer] that it allegedly discriminates against persons over forty years old as a class.” Ruehl, 500 F.3d at 386; Communications Workers, 282 F.3d at 217; Whalen, 56 F.3d 507; Lockardt, 879 F.2d at 53; Lusardi, 855 F.2d at 1078. It is likewise inconsistent with the court of appeals’ suggestion that an allegation that the defendant had engaged in a “pattern and scheme of systematic discrimination” is a sufficient allegation of class issues. Ruehl, 500 F.3d at 389.
Moreover, Kresefky is distinguishable on its facts. It is at least arguable that the statement in the Kresefky plaintiffs charge that others in the protected class were also terminated would be insufficient to notify the defendant that those terminations are alleged to be wrongful or discriminatory. Here, the EEOC charges filed by Plaintiffs Austin and Campbell all contained language that at least suggested that Defendant’s treatment of older workers as a group was wrongful and discriminatory. Lockardt, 879 F.2d at 53 (enquiring whether the charge provided “explicit or implicit” notice of class-based discrimination). Plaintiff Austin stated:
... I was released from employment during what the respondent called a ‘downsizing,’ which included many employees who were in my age group (50’s). Although General Industrial did not have a good year, I believe that the respondent was trying to get rid of older employees who were making more money than younger employees.
Thus, Austin did not limit herself to stating that other older employees were downsized. Rather, she accused Defendant of “trying to get rid of older employees.”
Similarly, Plaintiff Campbell stated: “The respondent has engaged in a pattern of forcing older employees out, while retaining younger employees with less experience and seniority. I have been told that there was a list of names of older employees to be let go, and my name was on it.” These allegations suggesting that older employees were targeted for termination despite having performed better than younger employees who were retained also suggest that Defendant’s conduct towards older workers as a group was discriminatory.
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

The charges of Plaintiffs Austin and Campbell properly are deemed to allege class issues, particularly in light of the fact that charges are intended to be prepared by layperson in most instances and are therefore to be liberally construed. See Canavan v. Beneficial Fin. Corp., 553 F.2d 860, 863 (3d Cir.1977).
This conclusion is supported by the decisions of courts in other jurisdictions finding that charges with similar language gave sufficient notice of class-based discrimination. For example, in Church v. Consolidated Freightways, Inc., 137 F.R.D. 294 (N.D.Cal.1991), the court found notice of class-discrimination to be sufficient where one plaintiff’s charge alleged that his position was eliminated “as was the other Quality Assurance Auditor position and the Director of Quality Assurance position,” that “the other persons whose Quality Assurance positions were eliminated were also over 40” and that other positions for which he applied “were given to younger candidates.” Id. at 302. Another plaintiff’s charge was also found to be sufficient where it alleged that “the company preferred younger managers,” that “younger managers were transferred to other positions rather than discharged,” that “[a]fter the merger, younger salespeople from CF took over the terminal manager positions,” that “the older management people are being terminated (or waiting to see what will happen with ... them)” and that “I have become aware through conversations with John Church that he has filed a charge with EEOC’s Charlotte District office making allegations similar to mine.” Id.
*37 As an additional example, in Levine v. Bryant, 700 F.Supp. 949 (N.D.III.1988), the court found a charge to sufficiently allege class-based discrimination where it alleged: “[The defendant] has made statements that they want ‘new blood’ in management. Since the new management started many employees over 50 years old in managerial positions have been discharged throughout the Country. All have been replaced by younger employees in the age group 20’s and 30’s.” Id. at 955.6

6

See also Anderson v. Montgomery Ward & Co., 852

F.2d 1008 (7th Cir.1988) (noting that 23 charges

included some of the following allegations: “I believe

Respondent’s efforts have been to eliminate older

employees and replace them with younger employees;

it is my belief that Respondent is attempting to remove

its older employees and replace them with young

employees; other older employees (over age 50) have

been terminated; as far as I know, most of the older

employees let go have been replaced by younger

employees; I believe that Respondent has attempted to

displace its older employees and replace them with younger employees; respondent consistently fails to promote, terminates or forces early retirement upon its employees age 40 and above; my former employer has engage in a discriminatory pattern of forcing employees over forty years old to voluntary [sic] resign their positions; and my circumstances were one in a series of actions in which respondent established a pattern of forcing older employees into early retirement and replacing them with younger individuals hired from outside the Company.”); Thiessen v. General Elec. Capital Corp., 996 F.Supp. 1071, 1076 (D.Kan.1998) (charge alleged: “Employment decisions at [the defendant] for persons similarly situated to me show a ‘stark pattern’ unexplainable on grounds other than age .... The Defendant has a well-established history of ‘early-outing’ or attempting to ‘early-out’ older white executives at or near my level. Further, the company has an express but covert policy of discriminating against older white employees. Older white employees who are performing at a level which meets or exceeds objective expectations are identified as “White blockers” or “blockers.” They are called “Blockers” because their continued employment “blocks” the promotion of younger ... “high potential” employees. The company’s policy is to force the older white employees into early retirement or to eliminate the employee’s position through restructuring. [The defendant] has a pattern and practice of removing employees identified as ‘Blockers’ from their positions.”)
III. Conclusion For the reasons stated above, it is recommended that the Defendant’s Motions for Summary Judgment Plaintiffs Rupert, Campbell, and Austin (Docket Nos. 77, 79 and 81) be denied insofar as they raise issues not relating to the Separation Agreement and Releases executed by Plaintiffs Rupert and Campbell, which issues will be addressed in a separate Report and Recommendation.
In accordance with this Court’s Order Referring Case to a Special Master dated September 27, 2007 and the stipulation of the parties, either party may file objections to-or a motion to adopt or modify-this report and recommendation no later than fourteen days from the date of the report and recommendation. Responses to objections are due within ten days of the initial filing of said objections or motion.
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

REPORT AND RECOMMENDATION

I. Recommendation It is respectfully recommended that: (i) Plaintiffs’ Motion for Summary Judgment (Docket No. 85) be denied in part as moot insofar as it relates to Defendant’s previously withdrawn Fourth Affirmative Defense but otherwise be granted; (ii) Defendant’s Second Affirmative Defense be stricken with prejudice; and (iii) judgment be entered in favor of Plaintiffs on Defendant’s Counterclaim with prejudice as to Defendant’s right to bring a Counterclaim based on breach of contract but without prejudice to Defendant’s right to file an Amended Counterclaim for restitution or on theories other than breach of contract. It is further recommended that Defendant’s Motions for Summary Judgment as to Plaintiffs Rupert and Campbell (Docket Nos. 77 and 79) be denied insofar as they raise issues relating to the Separation Agreement and Releases executed by these two Plaintiffs.1 Defendant’s Motions for Summary Judgment insofar as they raise other matters were addressed in prior separate Reports and Recommendations dated February 5, 2009 (Docket Nos. 123 and 124).

1

By Report and Recommendation dated February 5,

2009, it was recommended that Defendant’s Motions

for Summary Judgment as to Plaintiffs Hunt and Bittner

(Docket Nos. 75 and 83) be granted for reasons

unrelated to the issues addressed herein. For the reasons

stated herein, however, the Separation Agreements and

Releases executed by Plaintiffs Hunt and Bittner do not

provide an alternative basis upon which to grant

summary judgment against them. For unknown reasons,

Defendant’s Motion for Summary Judgment as to

Plaintiff Austin (Docket No. 81) omits any reference to

her Separation Agreement and Release and the Second

Amended Defense. However, Plaintiffs’ Motion for

Summary Judgment does raise the issue of Plaintiff

Austin’s Separation Agreement and Release.

claims both as individuals and as class representatives on behalf of others similarly situated.
Defendant has asserted as its Second Affirmative Defense that each of the five Plaintiffs executed a Separation Agreement and Release (collectively, the “Releases”) in which they released all claims under the ADEA. Thus, Defendant asserts that Plaintiffs’ ADEA claims are barred by the doctrines of waiver and release. Defendant has also asserted a breach of contract Counterclaim, in which Defendant seeks to recover damages for Plaintiffs’ breach of the Releases, including the amounts paid in consideration for the Releases and Defendant’s litigation costs, including attorneys’ fees, incurred in this action.
*38 Presently pending for disposition is a motion for summary judgment filed by Plaintiffs seeking an Order invalidating the Releases, dismissing Defendant’s Counterclaim and striking Defendant’s Second and Fourth Affirmative Defenses as a matter of law and with prejudice.2 It is recommended that Plaintiffs’ Motion for Summary Judgment be denied in part as moot insofar as it relates to Defendant’s Fourth Affirmative Defense, given that, as reflected in this Court’s Memorandum Order dated October 23, 2007 (Docket No. 45), Defendant has voluntarily withdrawn its Fourth Affirmative Defense. For the reasons that follow, it is recommended that Plaintiffs’ Motion for Summary Judgment otherwise be granted.

2

Defendant has opposed the Plaintiffs’ motion for

summary judgment as to all five plaintiffs. Defendant

has further cross-moved for summary judgment against

Plaintiffs Rupert, Hunt, Bittner and Campbell on

multiple grounds including that their claims have been

waived and barred by the Releases as asserted in

Defendant’s Second Affirmative Defense. This Report

and Recommendation addresses the issue of the

effectiveness of the Releases in the context of

Plaintiffs’ and Defendant’s summary judgment

motions.

II. Report Plaintiffs Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner bring this action in which they allege that the termination of their employment by Defendant PPG Industries, Inc. (“Defendant”) violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). Plaintiffs allege claims of both disparate treatment and disparate impact. Plaintiffs bring these

A. The Releases Do Not Comply with the Statutory Requirements of OWBPA and Thus Are Ineffective as Waivers of Plaintiffs’ ADEA Claims. Under the ADEA, as amended by the Older Workers Benefit Protection Act (“OWBPA”), a waiver of ADEA claims must be “knowing and voluntary.” 29 U.S.C. 626(f)(1). To be given effect as a waiver of ADEA
29

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

claims, a release must at a minimum satisfy eight statutory requirements set forth in 29 U.S.C. § 626(f) (1)(A)-(H). The Supreme Court has held that OWBPA’s statutory stricture on waivers is “strict” and “unqualified.” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426-27, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998). The OWBPA places the burden on the Defendant, as “the party asserting the validity of a waiver,” to demonstrate that the Releases satisfy each of the eight statutory requirements. 29 U.S.C. § 626(f)(3). Two statutory requirements are in dispute in this case: the understandabihty requirement set forth in § 626(f)(1)(A) and the requirement for certain informational disclosures set forth in § 626(f)(1)(H).

1. The Releases Do Not Satisfy The Statutory Understandability Requirement. Section 626(f) (1)(A) requires that to be effective as an ADEA waiver, the agreement between the parties must be “written in a manner calculated to be understood by such individual, or by the average individual eligible to participate.” 29 U.S.C. § 626(f) (1)(A). Significantly, EEOC regulations interpreting this statutory requirement state that:

The waiver agreement must not

have the effect of misleading,

misinforming, or failing to inform

participants and affected

individuals. Any advantages or

disadvantages described shall be

presented

without

either

exaggerating the benefits or

minimizing the limitations.

29 C.F.R. § 1625.22(b)(4). Defendant does not contest that this regulation is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Plaintiffs argue that various provisions in the Releases are written in a manner calculated to mislead the average eligible participant into believing that by executing the Releases he or she has covenanted or agreed not to sue PPG on any and all claims, including any claim challenging, or any claim in connection with which the participant seeks to challenge, the validity of the Release. As a result, Plaintiffs argue that the Releases are ineffective as waivers under OWBPA.

*39 a. Under OWBPA and Its Implementing Regulations, a Release Cannot Bar Participants from Challenging the Validity of the Release.
Pursuant to notice and comment rule-making, the EEOC promulgated 29 C.F.R. § 1625.23, which provides:
(b) No ADEA waiver agreement, covenant not to sue, or other equivalent arrangement may impose any condition precedent, any penalty, or any other limitation adversely affecting any individual’s right to challenge the agreement. This prohibition includes but is not limited to provisions requiring employees to tender back consideration received, and provisions allowing employers to recover attorneys’ fees and/or damages because of the filing of an ADEA suit. This rule is not intended to preclude employers from recovering attorneys’ fees or costs specifically authorized under federal law.
29 C.F.R. § 1625.23.
Section 1625.23 was promulgated in the wake of Oubre v. Entergy Operation, Inc., 522 U.S. 422, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998), which had held that the contract principles of ratification and tender back are not available defenses when an ADEA waiver is challenged. The Court held that the statutory command of OWBPA is clear: an employee “may not waive” an ADEA claim unless the Release satisfies OWBPA’s requirements. Oubre, 522 U.S. at 426-27. Thus, “OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law.” Id. at 427. The Court explained that OWBPA’s statutory stricture on waivers is “strict, unqualified,” and “incorporates no exceptions or qualifications.” Id.
The Court further stated:
The rule proposed by the employer would frustrate the statute’s practical operation as well as its
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

formal command. In many instances a discharged employee likely will have spent the moneys received and will lack the means to tender their return. These realities might tempt employers to risk noncompliance with the OWBPA’s waiver provisions, knowing it will be difficult to repay the moneys and relying on ratification. We ought not to open the door to an evasion of the statute by this device.
Id.; see also Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 782-84 (3d Cir. May 31, 2007) (relying on these same practical concerns that employees may be deterred from bringing meritorious claims and employers may be tempted to risk noncompliance, it was concluded that ERISA claims are not subject to the defenses of tender back and ratification).
Oubre noted that courts in the future “may need to inquire whether the employer has claims for restitution, recoupment, or setoff against the employee, and [that] these questions may be complex where a release is effective as to some claims but not as to ADEA claims.” Oubre, 522 U.S. at 428. The Court, however, found it unnecessary to reach these issues in the case before it, explaining that “[i]t suffices to hold that the release cannot bar the ADEA claim because it does not conform to the statute.” Id.
*40 Justices Breyer and O’Connor concurred and wrote separately to emphasize that a release that violates OWBPA is voidable rather than void. The concurrence explained that:
treating the contract as voidable could permit an employer to recover his own reciprocal payment (or to avoid his reciprocal promise) where doing so seems most fair, namely, where that recovery would not bar the worker from bringing suit. Once the worker (who has made the procedurally invalid promise not to sue) brings an age-discrimination suit, he has clearly rejected (avoided) his promise not to sue. As long as there is no “tender back” precondition, his (invalid) promise will not have barred his suit in conflict with the statute. Once he has sued, however, nothing in the statute prevents his employer from asking for restitution of his reciprocal payment or relief from any ongoing reciprocal obligation. See Restatement of

Restitution § 47, Comment b (1936) (“A person who transfers something to another believing that the other thereby comes under a duty to perform the terms of a contract ... is ordinarily entitled to restitution for what he has given if the obligation intended does not arise and if the other does not perform”); Dobbs, supra, at 994 (restitution is often allowed where benefits are conferred under voidable contract). A number of older state cases indicate, for example, that the amount of consideration paid for an invalid release can be deducted from a successful plaintiff’s damages award. See, e.g., St. Louis-San Francisco R. Co. v. Cox, 171 Ark. 103, 113-115, 283 S.W. 31, 35 (1926) (amount paid for invalid release may be taken into consideration in setting remedy); Koshka v. Missouri Pac. R. Co., 114 Kan. 126, 129-130, 217 P. 293, 295 (1923) (the sum paid for an invalid release may be treated as an item of credit against damages); Miller v. Spokane Int’l R. Co., 82 Wash. 170, 177-178, 143 P. 981, 984 (1914) (same); Gilmore v. Western Elec. Co., 42 N.D. 206, 211-212, 172 N.W. 111, 113 (1919).
Id. at 432-33 (Breyer, J., concurring) (emphasis in original).
Defendant argues correctly that section 1625.23(b) goes beyond the scope of Oubre by prohibiting not only tender back requirements but also covenants not to sue and other limitations adversely affecting an individual’s right to challenge the validity of the release. Defendant further argues in a somewhat cursory fashion that the broader prohibition in section 1625.23(b) contradicts the position taken by the Oubre concurrence and constitutes an inappropriate exercise of rule-making authority and “may not be entitled to deference because it overreaches substantive legal principles.” (Defendant’s Brief in Opposition to Plaintiffs’ Motion for Summary Judgment, at 3 & n.2.)
However, to the extent that section 1625.23(b) prohibits a release from including limitations that bar employees from challenging the validity of the release, and which therefore could have the effect of giving life to a waiver that does not comply with the OWBPA, it is consistent with both the majority opinion and the concurrence in Oubre. Given that Oubre is binding on this Court,3 it compels the conclusion that section 1625.23(b) is a valid exercise of agency rule-making entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), at least insofar as it prohibits release provisions that bar a plaintiff from bringing a suit to
31

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

challenge the validity of the release.

3

Defendant states that “[w]here Congress has listed in

the OWBPA the requirement for a valid ADEA release,

and EEOC has in 29 C .F.R. § 1625.22 provided

specific guidance on the same subject, no basis exists

for a court to add to the existing requirements,” and

cites to cases limiting the scope of judicial rule-making.

(Defendant’s Brief in Opposition to Plaintiffs’ Motion

for Summary Judgment, at 3, n.2 (citing Northwest

Airlines, Inc. v. Transportation Workers Union, 451

U.S. 77, 97, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981),

and Mobil Oil Corp. v. Higginbotham, 436 U.S. 618,

625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).) Whatever

the limitations on judicial rule-making, it suffices for

present purposes to acknowledge that this Court is

bound by the decision of the United States Supreme

Court in Oubre.

b. The Releases Are Written in a Manner Which Reasonably Could Be Understood by the Average Eligible Participant as Barring a Suit Challenging the Effectiveness of the Release. *41 Paragraph 6(a) of the Releases contains a broad claims release, as follows:
... Employee ... unconditionally releases [Defendant] from any and all claims and demands of any kind, known or unknown, which he/she may have against [Defendant] as of the date Employee signs this Agreement, and any claims relating to his/her employment as of his/her Separation Date. This release includes a waiver (a giving up) of any legal rights or claims Employee may have or may have had based upon any federal, state or local statutes or ordinances, specifically including but not limited to ... the [ADEA], all as amended, and any other claim or cause of action under federal, state or local statutory or common law .... All such claims (including claims for related attorneys’ fees and any litigation and court costs) are forever barred by this

Agreement.

Significantly, in addition to the broad claims release provision in paragraph 6(a), the Releases also contain in their next subparagraph a separate covenant not to sue. Paragraph 6(b) of the Releases states that “Employee agrees never to file a lawsuit or become a member of a class asserting any claims that are released by Employee in this Agreement.”
Covenants not to sue, like a waiver or a claims release, provide an affirmative defense that operates as a bar to consideration of the merits of any claim within their scope. As a general matter, a party or parties may prefer to use a claims release, a waiver or a covenant not to sue to achieve the same basic bar to the consideration of the merits of a claim, and a covenant not to sue may be selected in a given set of circumstances for a number of reasons, including to support an affirmative contract breach claim for damages if suit later is brought on a claim within its scope. Neither the OWBPA nor its implementing regulations prohibit the use of covenants not to sue.4 However, as explained by the EEOC:

4

Section 1625.23(b) arguably purports to prohibit an

agreement providing for the recovery of attorneys fees

or damages for breach of a covenant not to sue, which

seemingly would render a covenant not to sue as the

functional equivalent of a claims release. The grounds

relied upon in this Report and Recommendation for the

disposition of the parties’ summary judgment motions

in question, however, make it unnecessary to reach the

issue whether this regulatory limitation on the

availability of damages for breach of a covenant not to

sue is entitled to deference.

[a]lthough ADEA covenants not to sue (absent damages) operate as the functional equivalent of waivers, they carry a higher risk of violating the OWBPA by virtue of their wording. An employee could read “covenant not to sue” or “promise not to sue” as giving up not only the right to challenge a past employment consequence as an ADEA violation, but also the right to challenge in court the knowing and voluntary nature of his or her waiver agreement. The chance of misunderstanding is heightened if the covenant not to sue is added to an agreement that already includes an ADEA waiver clause. The covenant in such a case would have no legal effect separate from the waiver clause. Nonetheless, its
32

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

language would appear to bar an individual’s access to court.

Employers therefore must take precautions in drafting covenants not to sue so that employees understand that the covenants do not affect their right to test the knowing and voluntary nature of the agreements in court under the OWBPA.

65 Fed.Reg. 77438, 77443.5

5

The above quoted language was published in the

Federal Register along with the final rule set forth in

section 1625.23. Defendant argues that the EEOC’s

review of and response to comments submitted during

the rule-making process are not the product of notice

and comment rule-making, and thus this commentary is

only entitled to a “measure of respect” under Skidmore

v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89

L.Ed. 124 (1994). Under Skidmore, agency

interpretations,

while not controlling upon the courts by reason of

their authority, do constitute a body of experience

and informed judgment to which courts and

litigants may properly resort for guidance. The

weight of such a judgment in a particular case will

depend upon the thoroughness evident in its

consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements,

and all those factors which give it power to

persuade, if lacking power to control.

Skidmore, 323 U.S. at 140.

Skidmore, however, applies only to an agency’s

statutory interpretations. In contrast, when an agency

interprets its own regulations, a significantly more

deferential standard applies; the agency’s

interpretation is “controlling unless ‘plainly

erroneous or inconsistent with the regulation.’ ” Auer

v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137

L.Ed.2d 79 (1997). Indeed, the United States

Supreme Court recently applied Auer deference to

EEOC statements submitted in briefing regarding the

correct interpretation of another of its regulations.

See Federal Express Corp. v. Holowecki, ---U.S. ----,

----, 128 S.Ct. 1147, 1155, 170 L.Ed.2d 10 (Feb. 27,

2008).

Given that the quoted commentary explains the

agency’s own regulation, the more deferential Auer

standard applies. Defendant cites no authority for its

proposition that deference is not appropriate merely

because the EEOC comments appear in the portion

of the final rule-making in which the EEOC

discusses and responds to comments received in the

rule-making process. As with the amicus briefing at

issue in Auer and Holowecki, “[t]here is simply no

reason to suspect that the interpretation does not

reflect the agency’s fair and considered judgment on

the matter in question.” Id. at 462. Indeed, commentary accompanying final rule-making would seem to be less suspicious than post-litigation interpretations in briefing, which are more likely to constitute “ ‘post hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency action against attack.” Id. In sum, the EEOC’s reasoning regarding the special risk of misunderstanding that arises from the presence of a claims release or waiver in conjunction with a covenant not to sue is entitled to deference under Auer. However, even applying the less deferential Skidmore standard, the EEOC’s reasoning and guidance in this regard is persuasive.

*42 Plaintiffs refer to their challenge that the Releases do not comply with the OWBPA as a “claim” that supposedly is precluded or reasonably would be understood as being precluded by the broad claims release language in paragraph 6(a). Plaintiffs’ characterization, however, is neither helpful nor accurate. Their challenge is not a “claim”. Instead, it is a response to the Second Affirmative Defense of “the doctrines of waiver and/or release” raised by Defendants.6 The language of the claims release in paragraph 6(a) does not prohibit or limit such challenge and, considered alone or in isolation, could not reasonably have been understood to do so by the average eligible participant. The paragraph 6(a) claims release, however, did not exist alone but instead was part of paragraph 6 of the Releases which contained the next two subparagraphs, 6(b) and 6(c).

6

The conclusion that a challenge to the effectiveness of a

release is a response to an affirmative defense and not a

claim is reinforced by the course of proceedings in the

instant case. Plaintiffs’ First Amended Complaint

alleged age discrimination claims and violations of

OWBPA and included in the prayer for relief a request

for a judgment declaring that the Releases are invalid

and unenforceable under the OWBPA. It did so,

however, in the context of the assertion of Plaintiffs’

ADEA claims. When Plaintiffs subsequently sought

leave to file a Second Amended Complaint that

included a stand-alone “claim” and a new Count that

the Releases were invalid as violating the OWBPA, the

proposed Second Amended Complaint was in all

essential respects as related to the Releases identical to

the First Amended Complaint; the attempted

conversion of the challenge into a supposed stand alone

“claim” changed nothing of substance and added no

additional material allegations. The Court denied the

requested leave on other grounds as untimely (Docket

No. 52).

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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

Paragraph 6(b) contains a covenant not to sue. The risk of misunderstanding by the average eligible participant that the Release language operates to bar a challenge under the OWBPA to the legal effectiveness of the Release is heightened in the instant case, where the scope of the covenant not to sue in paragraph 6(b) extends to “any claims that are released by Employee in this Agreement”, which necessarily requires reference to the broad claims release language in paragraph 6(a) that applies to “any and all claims and demands of any kind,” including but not limited to “any legal rights or claims Employee may have or may have had based upon ... the [ADEA] ... as amended.” The only practical avenue available to Plaintiffs to challenge their signed Releases as ineffective under OWBPA was-as was done in this case-to file against Defendant their lawsuit asserting age discrimination claims and in that context to assert their OWBPA compliance challenge in response or anticipatory response to Defendant’s raising of the Releases as an affirmative defense to their age discrimination claims.7 Thus, the challenging of the effectiveness under the OWBPA of the Releases and the bringing of an ADEA claim lawsuit are, or reasonably could have been understood under the circumstances by the average eligible participant as being, intertwined and interconnected as a practical matter and included within the scope of the paragraph 6(a) broad affirmative claims release, of the paragraph 6(b) covenant not to sue, and/or of both in their combination. Accordingly, reading in conjunction the paragraph 6(a) claims release and the paragraph 6(b) covenant not to sue, the average eligible participant reasonably could have understood that the Release barred a challenge to the effectiveness or enforceability under the OWBPA of his or her Release.

7

In light of the limitations periods applicable to ADEA

claims, it would not have been feasible as a practical

matter for Plaintiffs to have deferred filing their ADEA

claims while pursuing separate declaratory judgment

actions seeking a declaration that their Releases were

ineffective. Moreover, requiring such a cumbersome

and impractical procedure would be contrary to

fundamental goals of the OWBPA protecting the rights

of employees.

Such an understanding by the average eligible participant reasonably would be reinforced by the next following subparagraph, i.e., paragraph 6(c), which expressly

excepts from the scope of the Releases “any rights to enforce this Agreement,” but is silent as to rights to challenge the enforceability of the Agreement. If this exception for rights to enforce the Release is to be given effect, there is at least a reasonable reading or understanding by the average eligible participant that, absent such exception, rights relating to enforceability of the Release would be within the scope of the claims release and/or covenant not to sue. By expressly excepting from the scope of the claims release only a subset of rights relating to the Releases, e.g., rights to enforce the Release, the average eligible participant reasonably could understand that other rights relating to the Releases, i.e., rights to challenge effectiveness of the Releases, are within the scope of the claims release and/or the covenant not to sue and thereby are barred.
*43 Defendant, however, points to paragraph 6(c), which provides that “the releases and waivers in this paragraph do not include any ... claims based on acts or events occurring after the effective dates of this Agreement.” Defendant argues that a challenge to the Releases would not be ripe until the Releases were effective, and that this language thus expressly preserves a claim in which an employee challenges the Releases. However, even assuming that a challenge to the Releases as violating OWBPA constituted a “claim” for these purposes, such a challenge would be (or reasonably could be understood by the average participant as being) “based on acts or events occurring” either prior to or contemporaneous with the effective date of the Agreement, and not “after” that date as required by the language of the exclusion. Moreover, this exception itself contains an exception for “claims associated with Employee’s employment or the termination of his/her employment up to, and including, his/her Separation Date,” which reasonably could reinforce the understanding of the average eligible participant that the Release bars an OWBPA challenge. See 29 C.F.R. § 1625.22(b) (3) (OWBPA’s understandability requirement “usually will require the limitation or elimination of technical jargon and of long, complex sentences.”).
Defendant also points to the language in paragraph 6(c) stating that “the releases and waivers in this paragraph do not include any ... claims that cannot be released or waived as a matter of law.” Again, even assuming that an OWBPA enforceability challenge constituted a “claim” for these purposes, there simply is no basis to conclude that the average eligible participant reasonably would understand said language to permit an OWBPA challenge which reasonably could be understood by the participant
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

as otherwise being barred by the Release.
The present issue is not whether the Releases by their language or under contract or other common law principles in fact barred Plaintiffs from challenging their compliance with the requirements of the OWBPA. Instead, the issue is whether the Releases are written in a manner calculated to be understood by the average eligible participant as barring such a challenge. Measured against this statutory standard, the Releases fail.8

8

In light of the conclusion that the Releases reasonably

could be understood by the average eligible participant

as an actual bar to suit, it is unnecessary to decide

Plaintiffs’ alternative argument that the attorney’s fees

provisions in the Releases also violate (or are calculated

to be understood in a manner that would violate)

section 1625.23(b) or the related issue of whether

section 1625.23(b) is entitled to deference to the extent

it goes beyond the scope of Oubre to prohibit

limitations that adversely affect a person’s right to

challenge the validity of a release but that do not rise to

the level of a bar.

Additionally, because OWBPA’s understandability

requirement is couched in objective terms (the

agreement between the parties must be “written in a

manner calculated to be understood by such

individual, or by the average individual eligible to

participate,” 29 U.S.C. § 626(f)(1)(A)), it is

unnecessary to consider extrinsic evidence as to how

the Releases allegedly were in fact understood. It is

noted, however, that Plaintiffs have adduced

evidence that four of the Plaintiffs, (see Austin

Affidavit, at 5-6; Rupert Affidavit, at 3-5; Hunt

Affidavit, at 3-5; Bittner Affidavit, at 2-4), and at

least some of Defendant’s representatives deposed in

this case understood that the covenants not to sue

barred any challenge to the validity of the Releases.

For example, Rett Wyman, the Human Resources

Manager for the Industrial Coatings Business Unit

testified that it was his understanding based upon the

language of the Releases that if an employee were to

file a lawsuit against Defendant challenging the

validity of the Releases, this would constitute a

breach of the agreement and that the employee would

therefore be responsible for Defendant’s litigation

expenses under paragraph 15 of the Release.

(Wyman Transcript, 141-142.)

Lastly, evidence submitted by Plaintiffs that

Defendant adopted a new form of Release with

different language has not been considered because

such evidence carries little or no weight for purposes

of resolving the issues presented. Thus, it is not

necessary to determine whether Federal Rule of

Evidence 407 would preclude its consideration.

c. The ADEA Waivers in the Releases Are Ineffective Under OWBPA. As the Supreme Court has emphatically indicated:
The policy of the OWBPA is ... clear from its title: It is designed to protect the rights and benefits of older workers. The OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee “may not waive” an ADEA claim unless the employer complies with the statute....
*44 ...
The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications.
Oubre, 522 U.S. at 838; accord Ruehl v. Viacom, Inc., 500 F.3d 375, 381-82 (3d Cir.2007).
Because the Releases were written in a manner calculated to cause the average eligible participant reasonably to understand that the Releases barred any challenge to their validity under the OWBPA, and because it would be unlawful under OWBPA for the Releases in fact to do so, the Releases were written in a manner calculated to have “the effect of misleading, misinforming, or failing to inform participants and affected individuals.” 29 C.F.R. § 1625.22(b)(4). The Releases thus do not satisfy OWBPA’s understandability requirement as interpreted by the EEOC in section 1625.22(b)(4) and are ineffective as a waiver of ADEA claims.
Defendant does not contest that section 1625.22(b)(4) is entitled to Chevron deference. Defendant does assert that the United States Court of Appeals for the Third Circuit has construed the understandability requirement in a practical non-technical manner, citing Wastak v. Lehigh Valley Health Network, 342 F.3d 281 (3d Cir.2003) (“Wastak II” ) for the proposition that misstatement of the plaintiff’s rights does not render an agreement inherently incomprehensible and thus does not violate the statutory understandability requirement. Wastak II
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

addressed an employee’s challenge to a release that purported to release the plaintiff’s right to file a charge with the EEOC in violation of OWBPA, 29 U.S.C. § 626(f)(4).
The court of appeals held that the offensive charge-filing ban “could be severed without disturbing the enforceability of the agreement.” Wastak II, 342 F.3d at 292. The court of appeals rejected the EEOC’s argument that by including the unenforceable charge-filing prohibition, the waiver misstated the plaintiff’s legal rights and thus violated one of the enumerated prerequisites for a valid waiver, namely the understandability requirement in § 626(f)(1)(A). See Id.
Significantly, however, the release in Wastak II was executed prior to the effective date of 29 C.F.R. § 1625.22, which not only provided that “no waiver agreement may include any provision prohibiting any individual from ... filing a charge ... with [the] EEOC,” but also provided that waiver agreements “must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals.” 29 C.F.R. § 1625.22(b) (4), (i)(2). The court of appeals expressly noted that:
[t]he presence of such a prohibition [against charge-filing] in a waiver agreement that is subject to this regulation could certainly lead a court to find, under proper circumstances, that the waiver ‘had the effect of misleading, misinforming, or failing to inform’ the plaintiff, 29 C.F.R. § 1625.22(b)(4), thus rendering the waiver not ‘knowing and voluntary,’ and therefore, invalid.
*45 Wastak II, 342 F.3d at 293 n. 6.
Subsequently, at least one court has held “the law is clear” that inclusion of a waiver of the employees’ rights to file charges with the EEOC renders a release invalid. See Peterson v. Seagate U.S. LLC, Civ. No. 07-2502, 2007 WL 4179399, at * 3 (D.Minn. Nov.20, 2007) (unpublished opinion).
In the instant case, the Releases were executed after the effective dates of both section 1625.22(b)(4), which requires that waivers not mislead, misinform or fail to inform, and of section 1625.23(b), which provides that “[n]o ADEA waiver agreement, covenant not to sue, or other equivalent arrangement may impose any condition precedent, any penalty, or any other limitation adversely affecting any individual’s right to challenge the

agreement.” Given the deference due to these intervening regulations, Wastak II does not control here, a possibility that Wastak II itself recognized. Moreover, unlike in Wastak II, there is nothing in the structure or regulatory history of these regulations that suggests that release provisions that violate section 1625.23(b) were not intended to invalidate the release.
Defendant argues that neither OWBPA nor its implementing regulations require employers to affirmatively inform the employee that the right to challenge the validity of a release is preserved. While this is true, the EEOC has cautioned that due to the special risk of misunderstanding posed by covenants not to sue, employers who choose to include them in their releases “must take precautions in drafting covenants not to sue so that employees understand that the covenants do not affect their right to test the knowing and voluntary nature of the agreements in court under the OWBPA.” 65 Fed.Reg. 77438, 77443.
Defendant similarly argues that the inclusion of the covenant not to sue does not make the Releases incomprehensible or incapable of being understood. Again, while this may be true, it ignores that section 1625.22(b)(4) mandates that the “agreement must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals” of their rights. 29 C.F.R. § 1625.22(b)(4).
Defendant also argues that even if the Releases contain misleading provisions, they are non-material terms and thus the appropriate remedy is to excise such provisions from the Releases and enforce the remainder of the Releases. General contract principles regarding striking of non-material terms, however, are of little significance in the context of OWBPA. As explained by the United States Supreme Court in rejecting the applicability of the contract principles of tender back and ratification:
The OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. The statute creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods. The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates
36

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

no exceptions or qualifications. The

text of the OWBPA forecloses the

employer’s

defense,

notwithstanding how general

contract principles would apply to

non-ADEA claims.

*46 Oubre, 522 U.S. at 841-42.

The best argument in support of severability may be one based on the regulatory scheme construing OWBPA. Indeed, although Defendant does not highlight it, there is some support for such an argument in the regulations. Section 1625.22(b)(4) states in full that “the waiver agreement must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals. Any advantages or disadvantages described shall be presented without either exaggerating the benefits or minimizing the limitations.” 29 C.F.R. § 1625(b)(4).

Here, Plaintiffs essentially argue that the language of the Releases as reasonably understood by the average eligible participant overstated, rather than minimized, the limitations on the participants’ ability to challenge the Releases under OWBPA. Thus, Plaintiffs cannot and do not argue that they were misled into executing the Releases on the basis of, or that they would not have done so had they been correctly informed as to, the limitations on their ability to challenge the effectiveness of the Releases under OWBPA. Moreover, despite the provisions in the Releases which reasonably could have been understood to bar a challenge under OWBPA to their validity, Plaintiffs in fact have brought this action. Thus, the challenged Release language in fact seemingly has caused Plaintiffs no harm that they would not have suffered in the absence of the challenged Release language.

The issues then are: (1) whether the second sentence of section 1625.22(b)(4) limits the scope of the broader first sentence; and (2) if it does not, whether it conflicts with the purpose of OWBPA in such a way as to make deference under Chevron inappropriate.

Neither party has cited any cases on this issue. Plaintiffs cite to cases from other circuits in which courts invalidated releases that included a covenant not to sue that expressly excepted claims under the ADEA but that also included ADEA claims in the scope of the released claims. Syverson v. IBM, 472 F.3d 1072 (9th Cir.2007);

Thomforde v. IBM, 406 F.3d 500 (8th Cir.2005). The courts of appeals held that this led to a confusing conflict between the covenant not to sue and the release provisions that could lead an employee to believe that the exception in the covenant not to sue negated the release of ADEA claims. Syverson v. IBM, 472 F.3d 1072 (9th Cir.2007); see also Thomforde v. IBM, 406 F.3d 500 (8th Cir.2005). Thus, the misleading statements in these cases had the effecting of minimizing, rather than maximizing or overstating, the limitations imposed by the releases. Thus, these cases are of limited use in resolving the issue presented here.
It is concluded that the second sentence of section 1625.22(b) (4) does not operate to limit the first. The regulatory language is most naturally read as stating two separate prohibitions: (1) a waiver must not mislead or fail to inform; and (2) a waiver must not exaggerate its benefits or minimize its limitations. Nothing about the language and structure of the regulation in question suggests that the second sentence is intended to limit the scope of the first. At most, the regulation is ambiguous as to whether the understandability requirement is satisfied where a release is calculated to mislead a plaintiff by maximizing the limitations of the release. Therefore, it is appropriate to consider the EEOC’s own interpretation of its regulation.9

9

Defendant correctly asserts that no deference is

afforded to agency interpretations of regulations that

are unambiguous. However, it is concluded that

1625.22(b)(4) and section 1625.23(b) when read

together do not unambiguously provide, as argued by

Defendant, that a release containing an unlawful

prohibition on challenges to the release’s validity does

not violate OWBPA’s understandability requirement by

misleading the employee as to his or her rights.

*47 The commentary published in the Federal Register along with the final version of section 1625.23 addresses the issue of whether inclusion of an unlawful limitation on the right to challenge the validity of the agreement renders the agreement unenforceable. The EEOC reported that in response to the EEOC’s Notice of Proposed Rule-making, one commenter had maintained that the language of the proposed rule left open the question of whether inclusion of unlawful tender back provisions might invalidate the release. See 65 Fed.Reg. 77438, 77441. The commenter had maintained that inclusion of such provisions should not invalidate an otherwise knowing and voluntary waiver. Id.
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

The EEOC responded thus:
The final regulation does not address the question of severability because the NPRM did not present the issue, and the record on it is very limited. The Commission believes, however, that contrary to the position advanced by the employer, there is a strong argument that inclusion of an invalid provision in an ADEA waiver agreement-such as a tender back clause or a damages provision-should invalidate the entire waiver. Under this point of view, inclusion of such provisions in a waiver would make the agreement misleading in a material sense and thus violate the OWBPA’s requirement that waivers be calculated to be understandable by the individual or by the average individual eligible to participate.
Id.
Later, and in more definite language, responding to a similar comment but in the context of the inclusion of an unlawful covenant not to sue, the EEOC again addressed the issue of the effect of the unlawful provision on the waiver. It stated:
Employers therefore must take precautions in drafting covenants not to sue so that employees understand that the covenants do not affect their right to test the knowing and voluntary nature of the agreements in court under the OWBPA. By investing “court[s] of competent jurisdiction” with the authority to resolve “any dispute that may arise over * * * the validity of a waiver,” Congress manifested in the plain language of the statute its intention to permit an employee who signed an ADEA waiver, to sue his or her employer upon the belief that the waiver did not comply with the OWBPA. Thus, any provision in a waiver agreement that would cause an employee to believe that he or she could not seek a judicial determination of the validity of the waiver misrepresents the rights and obligations of the parties to the agreement. Such a misrepresentation conflicts with the OWBPA

requirement that a valid waiver agreement must be “written in a manner calculated to be understood” by the employee “or by the average individual eligible to participate.” 29 U.S.C. 626(f)(1)(A).
65 Fed.Reg. 77438, 77443-77444 (emphasis added).
Defendant asserts that Skidmore supplies the standard of deference for these statements. However, given that this commentary interprets the interaction of two of the EEOC’s own regulations, namely sections 1625.22 and 1625.23, it is properly analyzed under the framework in Auer and is thus “controlling unless ‘plainly erroneous or inconsistent with the regulation.’ ”10 Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79; see also supra note 5. It could be argued that the EEOC’s statements that “there is a strong argument” that inclusion of an unlawful tender back provision “should” invalidate the waiver and that “under this point of view” the provision violates the understandability requirement, 65 Fed.Reg. 77438, 77441, fall short of a “fair and considered judgment on the matter in question” and thus is not entitled to deference under Auer. See Auer, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (in affording deference, stating that “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.”). This argument is strengthened by the EEOC’s explaining that the matter was not addressed in the proposed rule “because the NPRM did not present the issue, and the record on it is very limited.” 65 Fed.Reg. 77438, 77441.

10

Defendant also suggested at oral argument that this

commentary is not entitled to deference to the extent

that it interprets 1625.22(b)(4), given that it was

published in connection with section 1625.23.

Defendant cites no authority for this proposition.

Moreover, there does not appear to be any persuasive

basis for concluding that where an agency in

promulgating a new regulation opines as to its

interaction with existing regulations, its interpretation is

less deserving of deference.

*48 Despite this qualifying language, however, the EEOC believed its conclusion to be sufficiently fair and considered to publish it in the Federal Register as part of its final rule-making. Moreover, there is nothing equivocal about the EEOC’s statement that:
any provision in a waiver agreement that would cause
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

an employee to believe that he or she could not seek a judicial determination of the validity of the waiver misrepresents the rights and obligations of the parties to the agreement [and] ... conflicts with the OWBPA requirement that a valid waiver agreement must be “written in a manner calculated to be understood” by the employee “or by the average individual eligible to participate.”
Furthermore, the EEOC has allowed these statements to stand for eight years since their publication without further qualification or guidance. This commentary accompanying final rule-making would appear to be at least as fair and considered a judgment as post-litigation interpretations in briefing, which are afforded deference notwithstanding the fact that they are considerably more likely to constitute “ ‘post hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency action against attack.” Auer, 519 U.S. at 462; see also supra note 5.
Moreover, it is not unreasonable or inconsistent with the broad remedial purposes of the ADEA to invalidate a waiver where the misleading language did not harm the individual plaintiff in order to deter employers generally from including such provisions limiting the right to challenge the validity of a release in their release agreements. Although in such a case the “understandability” of the release seemingly does not impact the whether the release was “voluntary” as required by OWBPA, it does bear on whether it was “knowing.” Moreover, legislative history indicates that all of OWBPA’s threshold requirements, which would include the understandability requirement, are necessarily independent of the ‘knowing and voluntary considerations.” S. Rep. 101-263, 1990 U.S.S.C.A.N. 1509, 1538.
A rule invalidating a release containing a covenant not to sue which reasonably could be misunderstood by the average eligible participant does not impose any requirements in addition to the eight statutory requirements set forth in OWBPA. An employer is not required to include in its release a covenant not to sue, or a covenant not to sue in addition to a waiver or claims release, or some other limitation that reasonably could be understood by the average eligible participant to bar a challenge to the validity of the release. If an employer does not do so, it is not required affirmatively to inform the employee of his or her right to challenge the validity of the release under the OWBPA. Moreover, OWBPA provides that a waiver cannot be considered knowing and voluntary unless “at a minimum” the eight statutory

requirements are satisfied. The statutory language “at a minimum” does not preclude and would not necessarily be inconsistent with additional requirements. Furthermore, refusing to give effect to releases containing provisions that violate section 1625.23 even when the particular plaintiff was not harmed by their inclusion could be deemed an effective mechanism for enforcing section 1625.23, both as to those employees who in fact are harmed by the misleading inclusion of such a prohibition and as a result do not challenge the validity of the agreement or bring themselves before the court11 and/or also as to those employers who might well be tempted to risk noncompliance.12

11

Some of those who are misled into believing that they

are precluded from seeking judicial review of the

validity of their release or waiver might take advantage

of their right to file a charge with the EEOC, to the

extent such a right is expressly preserved by the release

or waiver, giving the EEOC the opportunity to pass on

the validity of the release or waiver. The legislative

history of OWBPA indicates, however, that one of the

reasons the bill was amended to omit the requirement

that ADEA waivers be supervised by the EEOC in the

first instance was the EEOC’s concern that it “lacked

the resources or capability to supervise waivers.”

S.Rep. No. 101-263, 1990 U.S.C.C.A.N. 1509, 1537.

As a result, as Oubre makes clear, OWBPA requires

that employees be afforded the opportunity to seek

judicial review of unsupervised waivers, which cannot

be equated with EEOC review.

12

Cf. Oubre, 522 U.S. at 427 (“The [tender back] rule

proposed by the employer would frustrate the statute’s

practical operation as well as its formal command. In

many instances a discharged employee likely will have

spent the moneys received and will lack the means to

tender their return. These realities might tempt

employers to risk noncompliance with the OWBPA’s

waiver provisions, knowing it will be difficult to repay

the moneys and relying on ratification. We ought not to

open the door to an evasion of the statute by this

device.”).

*49 In sum, it is concluded that a release written in a manner that reasonably could be understood by the average eligible participant to bar a challenge to its validity fails to satisfy the understandability requirement of OWBPA and is therefore ineffective as a waiver of ADEA claims. This conclusion is compelled by OWBPA, which not only places the burden of proof squarely on
39

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

Defendant but also displaces contract principles, by the Supreme Court’s guidance to the effect that the requirements of the OWBPA are to be strictly construed without qualification or exception, and, ultimately, by the deference due to the EEOC’s interpretation of OWBPA and of its own regulations.13

13

Nevertheless, it is troubling that a different result would

or might be required by application of contract or

general common law principles. This is particularly true

in the present circumstances where Plaintiffs did in fact

pursue their ADEA claims and commence this action

despite the challenged language of the Release and also

despite their receipt of substantial cash payments in

connection with their entering into of the Releases. To

the extent that any inequities might be deemed to have

resulted from application of the statutory scheme and

requirements in these circumstances, the potential for

amelioration on grounds other than breach of contract

at least with respect to the consideration paid by

Defendant in return for the Releases may exist under

Oubre, but that it is not a matter addressed on the

merits by this Report and Recommendation. See

discussion, supra, at n. 4 and n. 8, and infra, at Part B.

Accordingly, it is recommended that this Court grant summary judgment in favor of Plaintiffs invalidating the Releases and striking Defendant’s Second Affirmative Defense that Plaintiffs have waived and released their claims under the ADEA.

2. There Are Issues of Fact as to Whether the Informational Disclosures Received by Plaintiffs Rupert, Hunt, Bittner and Austin Comply with the Requirements of § 626(f)(1)(H). Plaintiffs assert that deficiencies in the informational disclosures received by Plaintiffs Rupert, Hunt, Bittner and Austin provide an additional, alternative basis upon which to grant a summary judgment invalidating the Releases executed by these four Plaintiffs. Under OWBPA, 29 U.S.C. § 626(f)(1)(H), “if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees,” the employer must inform the employee “in a manner calculated to be understood by the average individual eligible to participate” as to:
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such

program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
29 U.S.C. § 626(f)(1)(H).
“The purpose of the informational requirements is to provide an employee with enough information regarding the program to allow the employee to make an informed choice whether or not to sign a waiver agreement.” 29 C.F.R. § 1625.22(f)(1)(iv). Indeed, the legislative history of OWBPA indicates that Congress was concerned regarding the difficulty of assessing whether a program “gives rise to a valid claim under the ADEA” where employees have no information about “the scope of the program or its eligibility criteria.” S.Rep. No. 101-263, 1990 U.S.S.C.A.N. 1509, 1539. This Congressional concern was particularly focused on group termination programs because:
Employees affected by these programs have little or no basis to suspect that action is being taken based on their individual characteristics. Indeed, the employer generally advises them that the termination is not a function of their individual status. Under these circumstances, the need for adequate information and access to advice before waivers are signed is especially acute.
*50 Id. at 1538.
a. There Are Disputes of Material Fact as to the Scope of the Decisional Unit and Thus of the Required Disclosures. Section 1625.22 explains that the terms “class,” “unit,” “group,” job classification,” and “organizational unit” refer to examples of categories or groupings of employees affected by a program within an employer’s particular organizational structure, and that the scope of such terms is “determined by examining the ‘decisional unit’ at issue.” 29 C.F.R. § 1625.22(f)(1)(iii)(C), (3)(i)(A). The regulation elaborates as follows:
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

When identifying the scope of the “class, unit, or group,” and “job classification or organizational unit,” an employer should consider its organizational structure and decision-making process. A “decisional unit is that portion of the employer’s organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of a waiver. The term “decisional unit” has been developed to reflect the process by which an employer chose certain employees for a program and ruled out others from that program.
Id. § 1625.22(f)(3)(i)(B) (emphasis added).
Section 1625.22 goes on to explain that:
in appropriate cases some subgroup of a facility’s work force may be the decisional unit. In other situations, it may be appropriate for the decisional unit to comprise several facilities. However, as the decisional unit is typically no broader than the facility, in general the disclosure need be no broader than the facility. “Facility” as it is used throughout this section generally refers to place or location. However, in some circumstances terms such as “school,” “plant,” or “complex,’ may be more appropriate.
Id. § 1625.22(f)(3)(ii)(B).
(C) Often, when utilizing a program an employer is attempting to reduce its workforce at a particular facility in an effort to eliminate what it deems to be excessive overhead, expenses, or costs from its organization at that facility. If the employer’s goal is the reduction of its workforce at a particular facility and that employer undertakes a decision-making process by which certain employees of the facility are selected for a program, and others are not selected for a program, then that facility generally will be the decisional unit for purposes of section 7(f)(1)(H) of the ADEA.
(D) However, if an employer seeks to terminate employees by exclusively considering a particular

portion or subgroup of its operations at a specific facility, then that subgroup or portion of the workforce at that facility will be considered the decisional unit.
(E) Likewise, if the employer analyzes its operations at several facilities, specifically considers and compares ages, seniority rosters, or similar factors at differing facilities, and determines to focus its workforce reduction at a particular facility, then by the nature of that employer’s decision-making process the decisional unit would include all considered facilities and not just the facility selected for the reductions.
*51 Id. § 1625.22(f)(3)(ii) (emphasis added). Section 1625.22 gives several examples of cases where the decisional unit is other than the facility:
(A) A number of small facilities with interrelated functions and employees in a specific geographic area may comprise a single decisional unit;
(B) If a company utilizes personnel for a common function at more than one facility, the decisional unit for that function (i.e., accounting) may be broader than the one facility;
(C) A large facility with several distinct functions may comprise a number of decisional units; for example, if a single facility has distinct internal functions with no employee overlap (i .e., manufacturing, accounting, human resources), and the program is confined to a distinct function, a smaller decisional unit may be appropriate.
Id. § 1625.22(f)(3)(v).
The EEOC explains that “higher-level review of termination decisions generally will not change the scope of the decisional unit unless the reviewing process alters its scope.” Id. at 1625.22(f)(3)(vi)(A). However, it goes on to state that:
if the regional manager in the course of review determines that persons in other facilities should also be considered for termination, the decisional unit becomes the population of all facilities considered. Further, if, for example, the regional manager and his three immediate subordinates jointly review the termination
41

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

decisions, taking into account more than one facility, the decisional unit becomes the populations of all facilities considered.
Id. at 1625.22(f)(3)(vi)(B).
Finally, section 1625.22(f)(4)(v) provides:
If the terminees are selected from a subset of a decisional unit, the employer must still disclose information for the entire population of the decisional unit. For example, if the employer decides that a 10% RIF in the Accounting Department will come from the accountants whose performance is in the bottom one-third of the Division, the employer still must disclose information for all employees in the Accounting Department, even those who are the highest rated.
Id. at 1625.22(f)(4)(v).
The regulations then provide examples of typical structures for RIFs, including “facility-wide,” “division-wide,” “department-wide,” “reporting,” and “job-category.” 29 C.F.R. § 1625.22(f)(3)(iii).
Prior to promulgation of section 1625.22, the United States Court of Appeals for the Sixth Circuit pointed out the ambiguity of the statutory term “organizational unit,” and noted that it will always be in the employee’s interest to quibble with whatever definition the employer used. See Raczak, 103 F.3d at 1263. The court also recognized, however, that:
it is certainly possible that an employer will want to fiddle with the definition to mask the possible evidence for age discrimination.... [U]sing very small sub-units could ... mask discrimination because it is much more difficult to show or perceive discrimination when only very small numbers are involved.
*52 Id.

Defendants point to no cases interpreting the appropriate scope of a decisional unit. Plaintiffs point to two, although neither is wholly supportive of their position.
In Burlison v. McDonald’s Corporation, 455 F.3d 1242 (11th Cir.2006), Defendant McDonald’s engaged in a nationwide restructuring and RIF. In the restructuring, it reduced its U.S. “regions” from 38 to 21, in part by merging the three regions in which the plaintiffs had formerly been employed into one new Atlanta region. The regional manager for the new Atlanta region then worked with a group of senior managers to determine which of the 208 employees in the new Atlanta region to terminate. The informational disclosures provided to terminated employees covered the 208 employees in new Atlanta region.
The court held that the Atlanta region was the appropriate decisional unit. The court emphasized that “local mangers played key roles in the decision,” and explained that “because the local authorities controlled the decision, the localities accordingly constitute the appropriate scope for the informational requirements.” Id. The Court then held:
The facts as they are developed in this case indicate that the Appellees were chosen for termination from the 208 employees in the [new] Atlanta ... region [ ]. The facts further indicate that they were considered for employment only in the Atlanta region. Given that the relevant regulations define the appropriate decisional unit as those who were considered for jobs in the same process as the terminated employees, those 208 employees constitute the appropriate decisional unit, and our inquiry is complete.
Id. at 1249.
Plaintiffs also cite to Wells v. XPEDX, No. 8:05-CV-2193-T-EAJ, 2006 WL 3133984 (M.D.Fla.2006). There the employer implemented a RIF that eliminated over 3,000 positions. Defendant contended that because the employee was the only employee in his level of management, he was the only person in National Accounts-Retail, his decisional unit. See Id. at *9. The
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

plaintiffs argued that he was part of a larger decisional unit, the National Accounts division. See id. Pointing to evidence that the plaintiffs termination was controlled by the Vice President of National Accounts in Ohio, that plaintiff’s job was housed at the “National Accounts-Tampa, FL” facility, and that plaintiff’s job description identified his location as Tampa, FL and his department as National Accounts, the court held that National Accounts-Retail could be viewed as a mere subset of a decisional unit. See id. at * 11. The court declined to grant defendant’s motion for summary judgment finding that there were issues of fact as to whether the plaintiff, who was not terminated until several months after the larger RIF, was part of a group termination program. See id. at *8-9, 11.
As the EEOC has indicated, determining the scope of the decisional unit and thus of the required disclosures cannot be determined from the face of the release but requires an examination of the unique facts regarding the particular RIF or termination. In the instant case, there are disputed facts regarding the RIF that took place within Defendant’s Industrial Coatings Strategic Business Unit (“Industrial Coatings”) that preclude summary judgment in favor of either party on the present record.
*53 Defendant has submitted the Affidavits of John Prazenica, Director of Human Resources for Industrial Coatings, and of Rett Wyman, Human Resources Manager for Industrial Coatings, in which they state that “[i]n deciding how many and which Industrial Coatings employees would be terminated from employment in the workforce reductions, a RIF matrix system was used to group employees, based on what Industrial Coatings managers considered comparable job duties and skills.” (Wyman Affidavit dated March 24, 2008 and filed in support of Defendant’s motions for summary judgment as to Plaintiffs Hunt & Bittner (“Wyman Affidavit I”) ¶ 6; Prazenica Affidavit ¶ 6.) They further state that “[t]he RIF matrices were developed using PPG’s Oracle human resources database, which contained information on employees job titles, position titles and classifications.” (Wyman Affidavit I ¶ 7; Prazenica Affidavit ¶ 7.) They state that these RIF matrices were the basis for the informational disclosures given to terminated employees including Plaintiffs. (Wyman Affidavit I ¶ 8; Prazenica Affidavit ¶ 8.)
Significantly, Rett Wyman further states that:
9. The RIF matrix groupings were generally developed before the employees within each grouping were

reviewed, rated, and ranked for purposes of planning and implementing the involuntary workforce reductions. In other words, we did not use the RIF matrix process to review, rate, and rank the entirety of Industrial Coatings, or other large blocks of the workforce, and then afterwards break the workforce down into the groupings as represented on the Decisional Unit Information disclosures given to certain Industrial Coatings employees whose employment was terminated in the workforce reductions.
...
11. When planning and implementing the involuntary workforce reductions that were required in order to achieve the total required Industrial Coatings cost reduction, we did not use the RIF matrix process to review, rate, and rank the entirety of the Industrial Coatings workforce.
12. Rather, when planning and implementing involuntary workforce reductions related to the cost reduction initiative, only those Industrial Coatings employees within certain groups-the RIF matrix groupings-were reviewed, rated and ranked.
(Wyman Affidavit dated April 14, 2008 and filed in opposition to Plaintiffs’ motion for summary judgment (“Wyman Affidavit III”) ¶¶ 9, 11-12.)
Defendant has also submitted evidence that each of the Plaintiffs was selected for termination by comparison to other employees within their RIF matrix grouping, but without comparison to any other employees outside their RIF matrix grouping. (Prazenica Affidavit ¶¶ 10-11, 14 (as to Plaintiff Rupert); Deposition of Charla Serbent, at 40-41 (as to Hunt & Bittner); Wyman Affidavit III ¶¶ 13-15 (as to Plaintiffs Rupert, Hunt, Bittner & Austin)).
Standing alone, this evidence is sufficient to meet Defendant’s burden of adducing evidence sufficient to allow a reasonable mind to rule in its favor on this issue as to which it has the burden of proof.
*54 However, Defendant’s evidence focuses almost exclusively on its actions in comparing individual employees to one another in selecting employees for termination. Section 1625.22 does not define the decisional unit so narrowly, but rather speaks in terms of the entire “process by which an employer chose certain employees for a program and ruled out others,” 29 C.F.R.
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Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

§ 1625.22(f)(3)(i) (B), and the employees and groups of employees “considered” during that process, Id. § 1625.22(f)(3)(ii), (vi)(B). Indeed, it is clear that in the example given by section 1625.22(f)(3)(ii) (E), the individual employees are not compared to (or ranked against) the individual employees at the facilities that were previously considered but where the employer decided not to conduct its RIF. Nonetheless, the regulations provide that in such a case, “the decisional unit would include all considered facilities and not just the facility selected for the reductions.” Id. § 1625 .22(f)(3)(ii)(E).

Also, Defendant has not explained its conclusory assertion that the RIF Matrix system was used to determine “how many” employees would be terminated. (Wyman Affidavit I ¶ 6; Prazenica Affidavit ¶ 6.) It is far from clear how a process limited to comparing and ranking employees within each RIF Matrix grouping could yield a decision as to how many employees would be terminated from each grouping or as a whole under the RIF, yet the decision as to how many employees to terminate would seem to be an inherent part of the process by which Defendant selected some employees for termination while ruling out others.
Moreover, Plaintiffs have adduced evidence that the cost-out initiative in Industrial Coatings had a unified goal. See 29 C, .F.R. § 1625.22(f)(3)(ii)(C). For example, Matt Marek, the General Manager of Industrial Coatings (America), testified that he was responsible for cutting $25.6 million in costs to bring returns to a standard level of profitability. (See Deposition of Matt Marek, at 24, 28.) Moreover, Plaintiffs have adduced additional evidence suggesting that subgoals were set within Industrial Coatings for four out of five broad functions: sales, technical, corporate, and R & D (but not manufacturing). (See Plaintiffs’ Exhibits 43 & 117.)

Also, Defendant’s Senior Vice President James Trainham testified in another matter that there was a reduction in force in R & D in 2006 and that the R & D employees would have been considered for the reduction along with “everyone associated with industrial coating,” because “that’s where the downsizing occurred.” (Deposition of James Trainham, at 44-45.) He confirmed that he was referring to the “whole business unit,” “including R & D.” Id. at 45.14

14

Defendant asserts that this testimony is consistent with

its position that while the Industrial Coatings RIF had

an effect on work in Coatings R & D and was thus one of the reasons for the Coatings R & D RIF, the RIF at Coatings R & D was separate from the Industrial Coatings RIF. Trainham’s testimony, however, is at least sufficient to create a dispute of fact on this point.

Plaintiffs have further adduced evidence that during the grouping process, 508 Industrial Coatings employees were ultimately placed into thirty RIF Matrix groupings, far more than the five broad function groupings for which it appears that goals were set. (Plaintiffs’ Exhibit 179.) The 79 terminations are distributed across all thirty of these RIF Matrix groupings.15 Id. Plaintiffs have also adduced evidence that the RIF Matrix groupings were “created and named” by John Prazenica, Director of Human Resources for the Industrial Coatings Business Unit, and Rett Wyman, Human Resources Manager for the Industrial Coatings Business Unit and that the groupings did not conform to pre-established groupings or departments used within Defendant for any other purpose. (See Prazenica Deposition, at 301-302.) A combined effect of the large number of newly-created groupings and the dispersal of terminations across all groupings seemingly would make it more difficult for an adversely affected employee to discern discriminatory intent and particularly disparate impact.

15

The record is unclear as to whether these 30 grouping

comprised all the groupings in Industrial Coatings or

whether there were additional groupings created that

did not involve terminations.

*55 Additionally, Plaintiffs have adduced evidence suggesting that the rating and ranking process was not in fact always determinative of the issue of whether a particular employee was selected for termination, but rather that adjustments were made in some cases across RIF Matrix groupings and after the rating and ranking process. In the record is an August 29, 2005 email authored by Wyman in which he states that the technical management team had concluded their “realignment discussions” and “identified a number of individuals who have been impacted in their current roles that we feel are worthy of consideration elsewhere in the organization.” (Plaintiffs’ Exhibit 31.) Seven such individuals are then listed by name. Id. Notes from what appears to be a subsequent September 19, 2005 meeting refer to “[t]ransitional personnel moves to consider,” which included “[e]stablish[ing] Liquid Technical Development
44

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

Team at Springdale ... including Phil Brontz [one of the individuals listed in the August 29, 2005 email]. (Exhibit 55, at PPGR-04930.) Similarly, another document lists 22 individuals on a “RIF List” while also listing three individuals, including Bob Olson and Bernie Ackerman, two of the individuals identified in the August 29, 2005 email, under the heading “Move out of E-coat/PT.”16 (Plaintiffs’ Exhibit 74.)

16

“E-coat/PT” is not identified as one of the thirty RIF

Matrix groupings. (Plaintiffs’ Exhibit 179.) These

groupings do include a grouping identified as “ED-PT

Sales” and another grouping identified as “ED-PT Tech

Svc.” Id. at 2.

Finally, Plaintiffs have adduced evidence that prior to implementing the RIF, Prazenica prepared a spreadsheet comparing the impact of the RIF on individuals in various protected classes including age. (Prazenicka Deposition, at 119-121; Wyman Deposition, at 83-85.) This spreadsheet was also given to counsel, Gary Armbrust, for review. See Prazenica Deposition, at 121; Armbrust Transcript, at 17. The spreadsheet compares, among other things, the rate at which people over forty were being terminated as compared to people under forty. (See Plaintiffs’ Exhibit 179.) It makes this comparison considering all of the employees in Industrial Coatings in total, as well as considering each RIF Matrix grouping separately. Id.
Accordingly, Plaintiffs have adduced evidence from which a reasonable factfinder could conclude that the RIF Matrix groupings did not reflect the Defendant’s decisional process, i.e., that Defendant did not exclusively “consider” employees within the RIF Matrix groupings but rather considered multiple groupings in making its termination decisions and/or considered employees across groupings. Thus, Defendant is not entitled to summary judgment on this issue as to which it bears the burden of proof. At the same time, Defendant’s evidence and the reasonable inferences therefrom are sufficient to create a dispute of fact as to the correctness of the decisional units utilized in the DUD’s so as to withstand Plaintiffs’ motion for summary judgment.
In sum, the scope of the DUD’s do not provide an alternative basis for granting summary judgment in favor of Plaintiffs.

b. OWBPA Does Not Require That The Reasons for Plaintiffs’ Terminations Be Disclosed, and the Releases Are Not Ineffective on This Basis. *56 Plaintiffs assert that there is yet a third basis upon which to grant summary judgment in their favor invalidating the Releases. In addition to identifying the decisional unit covered by the employment termination program, section 626(f)(1)(H)(iii) requires that the employer inform the employees of “any eligibility factors for such program.” 29 U.S.C. § 626(f)(1)(H). An EEOC regulation explains that “[t]he term ‘exit incentive or other employment termination program’ includes both voluntary and involuntary programs.” 29 C.F.R. § 1625.22(e)(3). It further provides that “[u]sually ‘other employment termination program’ refers to a group or class of employees who were involuntarily terminated and who are offered additional consideration in return for their decision to sign a waiver.” Id. § 1625.22(f)(iii).
Significantly, the EEOC regulation gives an example demonstrating “one way” in the information required by § 626(f)(1)(H) could be presented. 29 C.F.R. § 1625.22(f)(4)(vii). In the example, the employer had determined that it must terminate 10% of the employees in its Construction Division, and decided to offer all terminees $20,000 in severance in exchange for a waiver. Id. The sample disclosure statement provides, “All persons in the Construction Division are eligible for the program. All persons who are being terminated in our November RIF are selected for the program.” Id . § 1625.22(f)(4)(vii)(B). There is no other provision in the sample disclosure statement that arguably addresses “eligibility factors.” Nowhere does the sample disclosure statement identify any of the factors used to determine which particular employees were selected for termination and which particular employees were selected for retention.
The implication of these regulations is that the statutorily required eligibility factors are the factors determining an employee’s eligibility to receive a severance payment and not the factors determining whether or not an employee is selected for termination. This conclusion is reinforced by the statutory use of the term “eligibility,” which does not readily stretch to encompass employment termination. It would be an odd use of language to speak in terms of being eligible to have your employment involuntarily terminated.
Because section 1625.22 was promulgated pursuant to notice and comment rule-making, Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104
45

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

S.Ct. 2778, 81 L.Ed.2d 694 (1984), provides the standard of deference. Under Chevron, where Congress has not “directly spoken to the precise question at issue,” a court “must sustain the [agency’s] approach so long as it is ‘based on a permissible construction of the statute.’ ” Auer, 519 U.S. at 457. Plaintiffs do not assert that section 1625.22 is not entitled to deference.17

17

A potential argument might be made that the definition

of “other employment program” contained in section

1625.22(f)(iii) is inconsistent with statutory language.

Section 626(f)(1)(H) sets forth certain information that

must be provided “if a waiver is requested in

connection with an exit incentive or other employment

termination program.” Substituting the EEOC’s

definition of “other employment program” into this

sentence, the EEOC’s interpretation might be argued as

rendering superfluous certain of the statutory language.

However, Plaintiffs have not made this nor any other

argument that section 1625.22(f)(iii) is not entitled to

deference.

Plaintiffs, however, cite several cases from other jurisdictions holding that the “eligibility factors” required by § 626(f)(1) (H) are “the factors used to determine who is subject to a termination program, not the factors used to determine who is eligible for severance pay after termination.” Massachusetts v. Bull HN Info. Sys., Inc., 143 F.Supp.2d 134, 147 n. 29 (D.Mass.2001); accord Kruchowski v. Weyerhaueser Co., 423 F.3d 1139, 1143-44 (10th Cir.2005), vacated and superseded on rehearing in part, 446 F.3d 1090 (10th Cir.2006); Merritt v. FirstEnergy Corp., No. 1:05-CV-00586, 2006 WL 4568793, at * 3 (N.D.Ohio 2006) (citing the subsequently vacated Kruchowski opinion) (unpublished opinion); Faraji v. FirstEnergy Corp., No. 1:04 CV 1493, 2007 WL 756750, at * 5 (N.D.Ohio 2007) (quoting Bull HN Info. Sys.) (unpublished opinion); Pagliolo v. Guidant Corp., 483 F.Supp.2d 847, 861 (D.Minn.2007).
*57 Kruchowski, the only decision in which this issue was considered by a court of appeals, was subsequently vacated with the superseding opinion silent on the issue of eligibility factors and relying instead on an expanded discussion of what had been an alternative ground in the prior opinion. See Kruchowski, 446 F.3d 1090. Moreover, Merritt relied solely on the subsequently vacated Kruchowski decision. Merritt, 2006 WL 4568793, at *3.
Most importantly, none of these decisions considered the significance of the absence of factors relevant to

termination in the sample disclosure form provided by the EEOC in section 1625.22(f)(4)(vii)(B). Indeed, of these cases, only Pagliolo even acknowledged the regulatory definition of “program” in section 1625.22(f)(1)(iii)(B), and that court engaged in no analysis regarding the deference due to this regulation. In the absence of an articulated basis for concluding that these regulations are inconsistent with OWBPA, an adequate basis does not exist to ignore or disregard the judgment of the EEOC. Indeed, information regarding eligibility for severance could be useful to the employee.
In conclusion, the failure of the DUD’s to provide the factors relevant to termination does not as a matter of law provide a basis for holding that the Releases are ineffective as ADEA waivers and thus does not provide an alternative basis for granting Plaintiffs’ motion for summary judgment.
3. It is Unnecessary to Determine Whether the Understandability of the DUDs Presents an Additional Ground for Granting Plaintiffs’ Motion for Summary Judgment. In a footnote in Plaintiffs’ brief in support of their motion for summary judgment, Plaintiffs assert that there are additional deficiencies in the DUD’s that rendered them not understandable in violation of OWBPA. These deficiencies are not illuminated in Plaintiffs’ brief, which instead incorporates the Joint Concise Statement of Material Facts. In light of the above conclusion that the Releases are unenforceable and the fact that Plaintiffs essentially seek to incorporate 44 pages from the Joint Concise Statement into a brief that was already at the thirty-five page limit set by this Court, it is unnecessary to address this issue.
B. Because The Releases Are Ineffective as to Plaintiffs’ ADEA Claims, Plaintiffs’ Pursuit of Their ADEA Claims Did Not Breach the Releases. Defendant has asserted a Counterclaim sounding in contract for breach of the Releases. As discussed supra, the Releases do not satisfy the requirements of OWBPA and thus are ineffective to waive of Plaintiffs’ ADEA claims. Because Plaintiffs have not released their ADEA claims, they did not, as a matter of law, breach their covenant not to sue by bringing them. Accordingly, it is recommended that this Court grant summary judgment in favor of Plaintiffs on Defendant’s Counterclaim for
46

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

breach of contract.
Defendant’s Counterclaim as alleged is limited to breach of contract. It is recommended that summary judgment be entered in favor of Plaintiffs, with prejudice as to Defendant’s right to file an amended Counterclaim for breach of contract, but without prejudice as to Defendant’s right to file an amended Counterclaim for restitution or on theories other than breach of contract. Where the availability of restitution or other affirmative relief raises significant issues regarding the deference due to section 1625.23(b) and its apparent tension with Oubre, which issues have not been thoroughly briefed by the parties, it is recommended that this Court decline to issue at this time what essentially would be an advisory opinion as to the availability of restitution or other affirmative relief on theories other than breach of contract as alleged in the Counterclaim. These issues may be appropriately addressed, if necessary, upon full briefing at a later stage in these proceedings.
C. Conclusion *58 For the reasons stated above, it is recommended that: (i) Plaintiffs’ Motion for Summary Judgment (Docket No.

85) be denied in part as moot insofar as it relates to Defendant’s previously withdrawn Fourth Affirmative Defense but otherwise be granted; (ii) Defendant’s Second Affirmative Defense be stricken with prejudice; (iii) judgment be entered in favor of Plaintiffs on Defendant’s Counterclaim with prejudice as to Defendant’s right to bring a Counterclaim for breach of contract but without prejudice to Defendant’s right to file an Amended Counterclaim for restitution or on theories other than breach of contract; and (iv) Defendant’s Motions for Summary Judgment as to Plaintiffs Rupert and Campbell (Docket Nos. 77 and 79) be denied insofar as they raise issues relating to the Separation Agreement and Releases executed by these two Plaintiffs.
In accordance with this Court’s Order Referring Case to a Special Master dated September 27, 2007 and the stipulation of the parties, either party may file objections to-or a motion to adopt or modify-this report and recommendation no later than fourteen days from the date of the report and recommendation. Responses to objections are due within ten days of the initial filing of said objections or motion.
	  

47

 
 Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

2009 WL 501907 Only the Westlaw citation is currently available.
United States District Court, W.D. Pennsylvania.
Arthur C. RUPERT, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner, individually and on behalf of all others similarly
situated, Plaintiffs, v.
PPG INDUSTRIES, INC., Defendant. Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt, Wade C. Bittner on behalf of themselves and all others similarly
situated, Consolidated Plaintiffs, v.
PPG Industries, Inc., Consolidated Defendants.
Nos. 07cv0705, 08cv0616. | Feb. 27, 2009.
Attorneys and Law Firms
Bruce C. Fox, Colin W. Murray, Melissa L. Evans, Rudy A. Fabian, Obermayer Rebmann Maxwell & Hippel LLP, Charles A. Lamberton, Lamberton Law Firm, Pittsburgh, PA, for Plaintiffs.
Jaime S. Tuite, James F. Glunt, Terrence H. Murphy, Lisa M. Passarello, Buchanan Ingersoll & Rooney, Pittsburgh, PA, for Defendant.
Opinion
ORDER OF COURT REJECTING THE SPECIAL MASTER’S REPORT AND RECOMMENDATION (DOC. NO. 125) AND SUSTAINING DEFENDANT’S OBJECTIONS THERETO (DOC. NO. 129); AND
GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS LIMITING TEMPORAL SCOPE OF PLAINTIFFS’ CLAIMS
(DOC. NO. 73)
ARTHUR J. SCHWAB, District Judge.

I. Ruling and Background
*1 This Court, for the reasons set forth below, finds that any plaintiff in this case (or possible opt-in plaintiff (if this Court would determine in the future that this case may proceed as a collective action) may not state an actionable cause of action that accrued earlier than December 31, 2005.
By way of background, plaintiffs allege that defendant PPG Industries Inc. systematically “discriminate[d] against its older workforce in conducting [r]eductions-in-[f]orce ... and forced retirements over an extended period of time.” First Am. Compl. ¶ 9 (doc. no. 13). They claim this “systemic age discrimination began at or about the time [Raymond] Leboeuf became CEO” which they allege was in or around 1997. Id. ¶ ¶ 23, 66. PPG’s employment of the named plaintiffs terminated in January and February 2006. Plaintiffs Rupert, Austin, Hunt and Bittner learned of their employment terminations in late January 2006. Id. ¶ ¶ 93, 115, 156, 169. Plaintiff Campbell learned that his employment termination would occur in late February 2006. Id. ¶ 132, 139.
The ADEA requires an EEOC charge to be filed, in a deferral state like Pennsylvania, within 300 days of when a cause of action accrues. In an ADEA collective action, the claims of any opt-in plaintiffs must accrue during the charge-filing period applicable to the earliest-filed charge properly raising class claims from a representative plaintiff. The first amended complaint alleges that the earliest charge filed by a named plaintiff was filed by Rupert on October 25, 2006. Thus, this action, for the sake of this pending Motion for Summary Judgment, may not include any claim accruing more than 300 days earlier than October 25, 2006—in other words, not before December 31, 2005.
II. Special Master’s Report and Recommendation
The Special Master recommended that Defendant’s Motion for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs’ Claims (doc. no. 73) be denied. While this Court adopted every other Report and Recommendation (doc. nos. 123, 124, and 126) of the
1

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

Special Master in this case (see doc. no. 133), this Court disagrees with the Special Master’s conclusion in the Report and Recommendation (doc. no. 125) relating to the issue of the temporal scope of plaintiffs’ claims.
III. Analysis of this Court
This Court agrees with defendant’s argument as set forth in its Brief in Support of Motion for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs’ Claims (doc. no. 74) that opt-in plaintiffs, who did not file EEOC charges, may only allege claims that accrued within the 300 days preceding the earliest-filed representative charge—which in this case is Plaintiff Rupert’s charge—and that equitable tolling is not available to resurrect claims that had expired before the earliest representative claim was filed. See Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527, 532 (11th Cir.1992) (under single-filing rule, filing and non-filing plaintiffs’ claims must have arisen from “similar discriminatory treatment in the same time frame”). Because Rupert filed his EEOC charge on October 25, 2006, no plaintiff may opt-in to the instant class action lawsuit if his or her claim accrued before December 31, 2005.
*2 Plaintiffs, on the other hand, argue that any former employee who meets the requirements for equitable tolling set forth in Ruehl v. Viacom, Inc., 500 F.3d 375 (3d Cir.2007) should be permitted to opt-in regardless of when his or her employment was terminated. However, this Court finds that the doctrine of equitable tolling cannot be so applied to the instant lawsuit.
“Equitable tolling functions to stop the statute of limitations from running where the [ADEA] claim’s accrual date has already passed.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). The requirements for equitable tolling in an employment discrimination case are: “(1) the defendant actively misled the plaintiff respecting the reason for the plaintiff’s discharge[;] (2) this deception caused the plaintiff’s non-compliance with the limitations provision[;]” and (3) the plaintiff must “demonstrate that he or she could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” Ruehl, 500 F.3d at 384. However, as defendant correctly points out in its Objections (doc. no. 129), equitable tolling is not available to non-filing plaintiffs whose claims did not accrue in the “same filing

period” as the filing plaintiff.
This Court agrees with the analysis in Thiessen v. General Electric Capital Corp., 996 F.Supp. 1071, 1077 (D.Kan.1998), wherein the district court found that “the vast majority of circuit courts ... apply the single-filing rule only to those plaintiffs whose claims arise in the ‘same time frame’ as the filing plaintiff or who could have filed timely EEOC charges on the date which the filing plaintiff actually filed his or her EEOC charge.” Furthermore, the Thiessen court rejected the plaintiff’s argument that equitable tolling “should apply to modify the limitations period for those opt-in plaintiffs who could not have filed a timely charge of discrimination at the time” of the representative charge. Id. Although the Special Master cited the Thiessen case for the notion that equitable tolling does apply to opt-ins whose claims expired before the representative plaintiff’s claim was filed, in the context of the single-filing rule, this Court finds that said case does not so hold. To the contrary, the Thiessen case permitted to join in the action “only those similarly situated opt-in plaintiffs who could have filed timely EEOC charges on the date Mr. Thiessen filed his charge ....” Id. at 1078.
In Zipes v. Trans World Airlines, Inc. Independent Federation of Flight Attendants, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the United States Supreme Court held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional pre-requisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Plaintiffs claim in their brief (doc. no. 93 at 2) that this statement entitles opt-in plaintiffs to the benefits of equitable tolling and that no cases can be found to suggest otherwise. However, neither argument is correct. First, the Court in the Zipes case stated that “filing a timely charge of discrimination” is subject to equitable tolling, not that an opt-in plaintiff can use the doctrine to resurrect a time-barred claim for which he or she has filed no EEOC charge. See Defendant’s Objections, doc. no. 129, p. 5. Second, the Thiessen case and the authorities cited therein certainly suggest that opt-in plaintiffs cannot use the doctrine without themselves filing EEOC charges. 996 F.Supp. at 1077. Plaintiffs further cite Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir.1977) in support of their argument. However, the Bonham court was not faced with a class action lawsuit, let alone potential opt-in plaintiffs, when it stated that “cases may arise where the employer’s own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate his rights.” Id. at 193;
2

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

contra. Plaintiff’s Brief, doc. no. 93, p. 2 (adding “[opt-in]” before the word “plaintiff” in the quoted sentence).
*3 The rule that applies in this case can be found in Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1220 (11th Cir.2001), where it was stated that the “rearward scope of an ADEA opt-in action should be limited to those plaintiffs who allege discriminatory treatment within 180 or 300 [in a deferral state] days before the representative charge is filed,” i.e., in “the same time frame.” Again, this ruling would limit opt-in plaintiffs in the instant lawsuit to those whose claims accrued after December 31, 2005. See also Thiessen, 996 F.Supp. at 1076–77 (collecting cases); Mazzare v. Burroughs Corp., 473 F.Supp. 234, 239–40 (E.D.Pa.1979) (district court rejected argument of employee who untimely filed an EEOC charge that his

limitations period was equitably tolled by the filing of a class action lawsuit against the employer by another employee).
For the foregoing reasons, the Court rejects the Special Master’s Report and Recommendation at Document No. 125, sustains defendant’s Objections (doc. no. 129) thereto, and GRANTS defendant’s Motion for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs’ Claims (doc. no. 73). Therefore, this action shall not include any claims accruing before December 31, 2005.
SO ORDERED.
	  

3

 
 Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 1 of 12

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

ARTHUR C. RUPERT, et al.,

)

)

Plaintiffs,

)

Case No. 2:07-cv-00705

)

v.

)

Judge Arthur J. Schwab

)

PPG INDUSTRIES, INC.,

)

ELECTRONICALLY FILED

)

LEAD CASE

Defendant.

)

---------------------------------------------------------------------------------------------------------------------

ARTHUR C. RUPERT, et al., Plaintiffs,
v. PPG INDUSTRIES, INC.,
Defendant.

)

)

)

Case No. 2:08-cv-00616

)

)

)

)

)

)

PPG'S SECOND AMENDED COUNTERCLAIM

In accordance with the Court's June 15, 2009 Order, defendant PPG Industries, Inc.

("PPG"), files its second amended counterclaim in response to the complaint (Doc. 13).

Background

1. In this attempted class action, 61 former PPG employees allege that their age was

"a motivating factor" when their PPG employment was terminated. PPG denies this allegation.

2. When their PPG employment ended in early 2006, all of these former employees

(except one) induced PPG to pay substantial severance by promising not to sue for age

discrimination.

3. The Court has ruled that PPG cannot enforce these promises as contracts.

4. With its second amended counterclaim, PPG seeks recovery of the severance it

paid, under theories of unjust enrichment and promissory estoppel.

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 2 of 12
5. The total recovery PPG seeks exceeds $2.1 million. Parties, Jurisdiction and Venue
6. PPG asserts its counterclaims against representative plaintiffs Arthur C. Rupert, Linda K. Austin, and Larry L. Campbell, as well as opt-in plaintiffs1 Adair Becer, Leslie M. Beck, Marianna Beveridge, Celeste M. Bey, William M. Bishop, Wade Bittner, Lorene C. Boettcher, Richard Bradstreet, Robert Curtis Burns, Virgil C. Caserta, Kathleen L. Sample, Edward R. Coleridge, Sr., Daniel J. Conroy, Raymond F. Cornuet, Jr., Bruce C. Crivaro, Frank V. De Carlo, Donaldson J. Emch, Andrew C. Feldpausch, Christopher L. Fredrickson, David H. Gang, April G. Giel, Gail E. Goodall, Cindy Hinich, Kenneth J. Hunt, David F. Jeffrey, Wilda M. Jones-Howe, Tim Kerchenski, Edward F. Kobe, David E. Kubicek, Quinton Lawson, Laura L. Leslie, Kevin Scott Lightsey, Pamela M. Longo, James L. Miles, Richard M. Nugent, Jr., Susan L. Prodoehl, J. A. Rakvic, Monica L. Rupert, Joseph C. Sawicki, Debra A. Scott, Gary R. Schmidt, Howard Sipe, Chris Marvin Smith, Elizabeth J. Smith, Michael L. Sproule, Raymond R. Stec, Melvin Terrell, Calvin Thornton, Edward L. Vandevort, Jr., Shirley L. VanDyke, Kevin Walters, Richard Welesko, Karl M. Wisniewski, Roberta Ann Wojtysiak, Warren R. Yaiser, John Zern and Edward P. Zilla (representative plaintiffs and above opt-in plaintiffs collectively hereinafter referred to as the "Counterclaim Defendants").
7. The Court has supplemental jurisdiction over PPG's counterclaims under 28 U.S.C. § 1367(a).
8. Venue is proper for PPG's counterclaims because they are ancillary to the claims brought by Counterclaim Defendants.
1 Of the 58 total opt-in plaintiffs, the only person not named as a Counterclaim Defendant is Matthew S. Miller, Sr.
2

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 3 of 12
Facts Giving Rise to Counterclaims 9. Each of the Counterclaim Defendants executed a "Separation Agreement and Release" (collectively, "Release Agreements"), copies attached as Exhibit A, in exchange for lump-sum severance payments to which they were otherwise not entitled. 10. PPG's inside and outside legal counsel drafted the template for the Release Agreements with the specific intent to comply with the requirements of the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), which contains the minimum requirements for releases of age discrimination claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. 11. PPG's understanding and intent was that the Release Agreements would be enforceable as contracts precluding lawsuits asserting ADEA claims. 12. PPG's "Salaried Severance Plan," which was published as of November 1, 2005 to Counterclaim Defendants (and all PPG employees), sets forth the lump-sum severance payment and extended benefit coverage that will be paid to eligible participants upon termination of employment due to specified reasons. 13. Under PPG's Salaried Severance Plan, upon the termination of their employment, Counterclaim Defendants were eligible to receive specified lump-sum severance payments in exchange for their execution (without revocation) of the Release Agreements. The lump-sum severance paid in exchange for signing a Release Agreement is referred to in the Salaried Severance Plan as the "Maximum Benefit." 14. All Counterclaim Defendants signed their Release Agreements, thus inducing PPG to take action by paying lump-sum severance amounts equal to the Maximum Benefit.
3

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 4 of 12
15. If the Counterclaim Defendants had decided not to sign their Release Agreements, then they would not have received the Maximum Benefit. Instead, they would have received lump-sum severance payments equal to 20% of the Maximum Benefit. This lesser payment is referred to in the Salaried Severance Plan as the "Alternate Benefit."
16. Thus, when their PPG employment ended, the Counterclaim Defendants had a decision to make as to which of the two lump-sum severance amounts they wanted -- the Maximum Benefit, or the Alternate Benefit. Each of the Counterclaim Defendants induced PPG to pay the Maximum Benefit by signing the Release Agreements.
17. After signing their Release Agreements, each of the Counterclaim Defendants had seven days in which they could have revoked their promises, if they changed their minds. (Exhibit A.) None of them revoked.
18. The PPG "Salaried Severance Plan Worksheets" for each Plaintiff, which reflect the amount they were each paid as the Maximum Benefit upon signing their Release Agreement, and the Alternate Benefit they would have been paid had they not signed the Release Agreement, are attached as Exhibit B.
19. The following chart sets forth the total lump-sum severance payment received by each Counterclaim Defendant in exchange for signing their Release Agreement (the "Maximum Benefit" as reflected on Exhibit B), and the lesser lump-sum severance amount that would have been paid had they not signed their Release Agreement (the "Alternate Benefit" as reflected on Exhibit B), and the difference between the two. PPG seeks recovery of the difference as the appropriate measure of restitution.
4

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 5 of 12

Total Severance (Maximum Benefit)

1) Austin 2) Becer 3) Beck 4) Beveridge 5) Bey 6) Bishop 7) Bittner 8) Boettcher 9) Bradstreet 10) Burns 11) Campbell 12) Caserta 13) Sample 14) Coleridge 15) Conroy 16) Cornuet 17) Crivaro 18) De Carlo 19) Emch 20) Feldpausch 21) Fredrickson 22) Gang 23) Giel 24) Goodall 25) Hinich 26) Hunt 27) Jeffrey 28) Jones-Howe 29) Kerchenski

$57,311.23 $96,222.43 $41,794.99 $41,095.20 $37,440.00 $63,449.00 $42,931.01 $12,166.81 $73,356.00 $15,886.09 $39,360.94 $32,913.38 $32,348.32 $70,908.77 $35,367.17 $35,332.03 $42,233.76 $57,089.57 $75,374.90 $26,963.51 $31,152.03 $51,550.37 $42,607.97 $34,848.26 $16,652.54 $56,544.00 $49,539.76 $11,380.09 $29,239.00

Alternate Benefit
$11,462.25 $19,244.49 $ 8,359.00 $ 8,219.04 $ 7,488.00 $12,689.80 $ 8,586.20 $ 2,433.36 $14,671.20 $ 3,177.22 $ 5,872.19 $ 6,582.68 $ 6,469.66 $14,181.75 $ 7,073.43 $ 7,066.41 $ 8,446.75 $11,417.92 $15,074.98 $ 5,392.70 $ 6,230.41 $10,310.07 $ 8,521.59 $ 6,969.65 $ 3,330.51 $11,308.80 $ 9,907.95 $ 2,276.02 $ 5,847.82

5

Difference
$45,848.98 $76,977.94 $33,435.99 $32,876.16 $29,952.00 $50,759.20 $34,344.81 $ 9,733.45 $58,684.80 $12,708.87 $33,488.75 $26,330.70 $25,878.66 $56,727.02 $28,293.74 $28,265.62 $33,787.01 $45,671.65 $60,299.92 $21,570.81 $24,921.62 $41,240.30 $34,086.38 $27,878.61 $13,322.03 $45,235.20 $39,631.81 $9,104.07 $23,391.18

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 6 of 12

Total Severance (Maximum Benefit)

30) Kobe 31) Kubicek 32) Lawson 33) Leslie 34) Lightsey 35) Longo 36) Miles 37) Nugent 38) Prodoehl 39) Rakvic 40) A. Rupert 41) M. Rupert 42) Sawicki 43) Schmidt 44) C. Smith 45) E. Smith 46) Scott 47) Sipe 48) Sproule 49) Stec 50) Terrell 51) Thornton 52) Vandevort 53) VanDyke 54) Walters 55) Welesko 56) Wisniewski 57) Wojtysiak 58) Yaiser

$56,369.41 $57,457.63 $29,312.12 $39,243.25 $58,352.80 $40,573.13 $66,588.00 $71,633.57 $42,632.83 $79,351.97 $64,121.63 $25,403.05 $24,952.46 $79,578.43 $25,864.00 $25,929.06 $12,695.70 $20,869.96 $78,470.40 $64,559.23 $34,510.53 $20,251.69 $64,759.20 $31,478.55 $52,000.61 $84,129.60 $45,123.34 $31,737.20 $32,153.36

Alternate Benefit
$11,273.88 $11,491.53 $ 5,862.42 $ 7,848.65 $11,670.56 $ 8,114.63 $13,317.60 $14,326.71 $ 8,526.57 $15,870.39 $12,824.33 $ 5,080.62 $ 4,990.49 $15,915.69 $ 5,172.80 $ 5,185.81 $ 2,539.14 $ 4,173.99 $15,694.08 $12,911.85 $ 6,902.11 $ 4,050.34 $12,951.84 $ 6,295.71 $10,400.12 $16,825.92 $ 9,024.67 $ 6,347.44 $ 6,430.67

6

Difference
$45,095.53 $45,966.10 $23,449.70 $31,394.60 $46,682.24 $32,458.50 $53,270.40 $57,306.86 $34,106.26 $63,481.58 $51,297.30 $20,322.43 $19,961.97 $63,662.74 $20,691.20 $20,743.25 $10,156.56 $16,695.97 $62,776.32 $51,647.38 $27,608.42 $16,201.35 $51,807.36 $25,182.84 $41,600.49 $67,303.68 $36,098.67 $25,389.76 $25,722.69

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 7 of 12

59) Zern 60) Zilla

Total Severance (Maximum Benefit)
$47,096.83 $34,374.43

Alternate Benefit
$ 9,419.37 $ 6,874.89

Difference
$37,677.46 $27,499.54

20. PPG paid the above Maximum Benefit severance believing that by doing so, the Counterclaim Defendants came under a contractual duty to honor all terms and conditions of the Release Agreements.
21. The ADEA claims Counterclaim Defendants now assert in this civil action are those explicitly released by the Release Agreements.
22. The Release Agreements contain, in addition to and separate from the general release of all claims, promises and obligations "never to file a lawsuit or become a member of a class asserting any claims that are released."
23. The Release Agreements contain, in addition to the general releases of all claims and the promises not to sue, material representations of fact, including but not limited to the fact that each Counterclaim Defendant entered into their Release Agreement of his or her own free will and without coercion or duress, intending to be legally bound.
24. Despite the obligations, promises, and material representations of fact contained in the Release Agreements, relied on by PPG to its detriment when paying lump sum severance amounts equal to the Maximum Benefit, the Counterclaim Defendants have filed ADEA claims, which they explicitly promised not to do.
25. Despite the obligations, promises, and material representations of fact contained in the Release Agreements, relied on by PPG to its detriment when paying lump sum severance amounts equal to the Maximum Benefit, Counterclaim Defendants have become members of a class asserting ADEA claims, which they explicitly promised not to do.

7

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 8 of 12
26. Despite filing claims they promised not to file under the Release Agreements, and becoming members of a class they promised not to join, Counterclaim Defendants retained the entirety of the lump-sum severance amounts paid to them by PPG in consideration for these now broken promises.
27. Thus, Counterclaim Defendants have not complied with the terms and conditions of the Release Agreements, despite PPG's understanding and intent that the Release Agreements would be enforceable as contracts.
Counterclaims and Recovery Sought 28. On September 10, 2007, PPG filed a counterclaim for breach of contract against plaintiffs Rupert, Austin, Campbell, Hunt and Bittner based upon their breach of obligations contained in the Release Agreements. 29. On February 26, 2009, the Court dismissed PPG's breach-of-contract counterclaim with prejudice, and adopted the Special Master's recommended ruling that, as a matter of law, the Release Agreements are not enforceable as contracts. (Doc. 133.) 30. The Court has permitted PPG to file amended counterclaims in quasi-contract seeking restitution of severance paid. (Doc. 133.) 31. Although PPG paid substantial lump-sum severance payments intending for contractual obligations to arise that would preclude the assertion of ADEA claims in a lawsuit, the Court's February 26, 2009 determination that the Release Agreements are not enforceable as contracts means that Counterclaim Defendants in this action were unjustly enriched. Accordingly, PPG asserts a counterclaim against Counterclaim Defendants for unjust enrichment.
8

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 9 of 12

32. PPG justifiably and detrimentally relied on the promises and material

representations of fact in the Release Agreements when taking action by paying the Maximum

Benefit severance to Counterclaim Defendants. Accordingly, PPG asserts a counterclaim against

Counterclaim Defendants for promissory estoppel.

33. Regardless of whether they ultimately prevail on the merits of their ADEA

claims, the Counterclaim Defendants are liable to PPG for restitution equal to the difference

between the lump-sum severance PPG paid in exchange for execution of the Release Agreements

and the lesser lump-sum severance PPG would have paid had they not executed the Release

Agreements. The specific amount of restitution sought is as follows:

Restitution sought from:

Linda K. Austin Thomas Adair Becer Leslie M. Beck Marianna Beveridge Celeste M. Bey William M. Bishop Wade Bittner Lorene C. Boettcher Richard Bradstreet Robert Curtis Burns Larry L. Campbell Virgil C. Caserta Kathleen L. Sample Edward F. Coleridge, Sr. Daniel J. Conroy Raymond F. Cornuet, Jr. Bruce C. Crivaro Frank V. De Carlo

$45,848.98 $76,977.94 $33,435.99 $32,876.16 $29,952.00 $50,759.20 $34,344.81 $ 9,733.45 $58,684.80 $12,708.87 $33,488.75 $26,330.70 $25,878.66 $56,727.02 $28,293.74 $28,265.62 $33,787.01 $45,671.65

9

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 10 of 12

Restitution sought from:
Donaldson J. Emch Andrew C. Feldpausch Christopher L. Fredrickson Daniel H. Gang April G. Giel Gail E. Goodall Cindy Hinich Kenneth J. Hunt David F. Jeffrey Wilda M. Jones-Howe Tim Kerchenski Edward F. Kobe David E. Kubicek Quinton Lawson Laura L. Leslie Kevin Scott Lightsey Pamela M. Longo James L. Miles Richard M. Nugent, Jr. Susan L. Prodoehl J. A. Rakvic Arthur C. Rupert Monica L. Rupert Joseph C. Sawicki Gary R. Schmidt Chris Marvin Smith Elizabeth J. Smith Debra A. Scott Howard Sipe Michael L. Sproule

$60,299.92 $21,570.81 $24,921.62 $41,240.30 $34,086.38 $27,878.61 $13,322.03 $45,235.20 $39,631.81 $ 9,104.07 $23,391.18 $45,095.53 $45,966.10 $23,449.70 $31,394.60 $46,682.24 $32,458.50 $53,270.40 $57,306.86 $34,106.26 $63,481.58 $51,297.30 $20,322.43 $19,961.97 $63,662.74 $20,691.20 $20,743.25 $10,156.56 $16,695.97 $62,776.32

10

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 11 of 12

Restitution sought from:
Raymond R. Stec Melvin Terrell Calvin Thornton Edward L. Vandevort, Jr. Shirley L. VanDyke Kevin Walters Richard Welesko Karl M. Wisniewski Roberta Ann Wojtysiak Warren R. Yaiser John Zern Edward P. Zilla

$51,647.38 $27,608.42 $16,201.35 $51,807.36 $25,182.84 $41,600.49 $67,303.68 $36,098.67 $25,389.76 $25,722.69 $37,677.46 $27,499.54

WHEREFORE, in addition to such other relief as the Court deems just and proper, PPG seeks restitution as follows:
(a) As to all Counterclaim Defendants whose ADEA claims fail for any reason, PPG seeks affirmative recovery in an amount equal to the difference between the lump-sum severance those Counterclaim Defendants received in exchange for their execution of the Release Agreements (if applicable) and the lesser lump-sum severance they would have received had they not executed Release Agreements.
(b) As to all Counterclaim Defendants who might be awarded monetary recovery of any amount, a set-off against their monetary recovery in an amount equal to the difference between the lump-sum severance those Counterclaim Defendants received in exchange for their execution of the Release Agreements (if

11

Case 2:07-cv-00705-AJS Document 233 Filed 06/30/09 Page 12 of 12

applicable) and the lesser lump-sum severance they would have received had they not executed Release Agreements. Alternatively, PPG seeks restitution only in the form of a set-off, such that any monetary recovery that might be awarded to any of the Counterclaim Defendants is reduced by an amount equal to the difference between the lump-sum severance those Counterclaim Defendants received in exchange for their execution of the Release Agreements (if applicable) and the lesser lump-sum severance they would have received had they not executed Release Agreements.
Respectfully submitted,

Dated: June 30, 2009

/s/ James F. Glunt
Terrence H. Murphy (PA 36356) terrence.murphy@bipc.com Lisa M. Passarello (PA 64823) lisa.passarello@bipc.com James F. Glunt (PA 85555) jay.glunt@bipc.com Jaime S. Tuite (PA 87566) jaime.tuite@bipc.com Christian C. Antkowiak (PA 209231) christian.antkowiak@bipc.com
BUCHANAN INGERSOLL & ROONEY PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 Phone: (412) 562-8800 Fax: (412) 562-1041
Attorneys for Defendant

12
#4617356-v1

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


ARTHUR C. RUPERT, et al., Plaintiffs,
v. PPG INDUSTRIES, INC.,
Defendant.

)

)

)

Case No. 2:07-cv-00705

)

)

Judge Arthur J. Schwab

)

)

ELECTRONICALLY FILED

)

LEAD CASE

)

ARTHUR C. RUPERT, et al., Plaintiffs,
v. PPG INDUSTRIES, INC.,
Defendant.

)

)

)

Case No. 2:08-cv-00616

)

) 


) 


) 


)

)

ORDER
AND NOW, this r2s:L~ day of~.~, 2009, it is hereby ORDERED,

ADJUDGED and DECREED that:

I. In this action, the Court conditionally certified under 29 U.S.c. § 216(b)

plaintiffs' claims against defendant under the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. § 621 et seq. CADEAU). Defendant asserts counterclaims against 600fthe

61 plaintiffs for unjust enrichment and promissory estoppel (plaintiff Mathew Miller is not a

counterclaim defendant.)

2. The parties have informed the Court that they have agreed on settlement terms for

the entirety of this action, including all claims by all parties.

3. The parties have informed the Court that the settlement terms include no provision for non-monetary equitable or injunctive relief, or that would require continued legal proceedings or ongoing supervision by the Court.
4. Plaintiffs' counsel has represented to the Court that all 61 plaintiffs are fully informed about the settlement, consent to the terms and have authorized the original named plaintiffs and plaintiffs' counsel to effect the settlement.
5. The parties stipulate that the settlement class as to plaintiffs' ADEA claims is the 58 former PPG employees who filed consents to join this action, and that the original named plaintiffs are authorized to conclude settlement terms herein on behalf of all plaintiffs.
6. Legal fees and costs are not awarded to any party except as set forth in the parties' settlement agreement.
7. Plaintiffs' claims in Case Nos. 2:07-cv-00705 and 2:08-cv-00616, and defendant's counterclaims in Case No. 2:07-cv-00705 are dismissed with prejudice.
8. The Clerk shall remove this case from the docket for administrative purposes. 9. In the event any party fails to effectuate the settlement terms, the case may be reinstated to the docket upon request of any party for any required proceedings related to the settlement agreement.
-2­

 
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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.

)

)

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 indi vidual 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.

CaCseas2e:025:-0m8c-c-0v-200026516-ADJoScumDeoncut m60e5nt 1 FFileiledd0055/0/066/2/0808 PaPgeag2eo2f 9of 9
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 them selves 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: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 1 of 34
CLOSED, CONSOL, LEAD, SM
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:07−cv−00705−AJS

RUPERT et al v. PPG INDUSTRIES, INC. Assigned to: Arthur J. Schwab Member case: (View Member Case) Cause: 29:621 Job Discrimination (Age) Special Master KEVIN P. LUCAS
Plaintiff ARTHUR C. RUPERT

Date Filed: 05/24/2007 Date Terminated: 11/23/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Kevin P. Lucas Manion, McDonough &Lucas 600 Grant Street Suite 1414 Pittsburgh, PA 15219 (412) 232−0200 Email: klucas@mmlpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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
Charles A. Lamberton Lamberton Law Firm 707 Grant Street Suite 1705 Pittsburgh, PA 15219 (412) 258−2250 Fax: 412−258−2249 Email: cal@lambertonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie A. McCann AARP Foundation Litigation 601 E St., N.W. Washington, DC 20049 (202) 434−2082 Fax: (202) 434−6424 Email: lmccann@aarp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Leonard One Penn Center, 19th Floor 1617 John F. Kennedy Boulevard Philadelphia, PA 19103 (215) 665−3228 Email: william.leonard@obermayer.com

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 2 of 34

LEAD ATTORNEY PRO HAC VICE 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 Obermayer Rebmann Maxwell &Hippel LLP One Mellon Center, Suite 5240 500 Grant Street Pittsburgh, PA 15219 (412) 566−1500 Fax: (412) 566−1508 Email: melissa.evans@obermayer.com ATTORNEY TO BE NOTICED

Rudy A. Fabian Obermayer Rebmann Maxwell &Hippel LLP One Mellon Center, Suite 5240 500 Grant Street Pittsburgh, PA 15219 412−566−1500 Fax: 412−566−1508 Email: rudy.fabian@obermayer.com ATTORNEY TO BE NOTICED

Plaintiff LINDA K. AUSTIN

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

Charles A. Lamberton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 3 of 34

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

Charles A. Lamberton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE 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

Charles A. Lamberton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 4 of 34

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 individually and on behalf of all others similarly situated

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

Charles A. Lamberton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE 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

V. Defendant PPG INDUSTRIES, INC.

represented by Christian Antkowiak Buchanan Ingersoll and Rooney One Oxford Center 301 Grant Street 20th Floor Pittsburgh, Pa 15219 412−562−3988 Email: christian.antkowiak@bipc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin J. McLaughlin Buchanan Ingersoll &Rooney 301 Grant Street

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 5 of 34
One Oxford Centre, 20th Floor Pittsburgh, PA 15219 (412) 392−2090 Email: erin.mclaughlin@bipc.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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James F. Glunt Ogletree Deakins Nash Smoak &Stewart, P.C. 444 Liberty Avenue Suite 400 Pittsburgh, PA 15222 (412) 394−3339 Fax: 412−232−1799 Email: jay.glunt@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H. Meade Buchanan Ingersoll 301 Grant Street One Oxford Centre, 20th Floor Pittsburgh, PA 15219 (412) 562−5271 Email: matthew.meade@bipc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence H. Murphy Buchanan Ingersoll &Rooney PC One Oxford Centre 20th Floor Pittsburgh, PA 15219 392−2044 Email: terrence.murphy@bipc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan M. Pittler University of Pittsburgh Office of General Counsel 1710 Cathedral of Learning Pittsburgh, PA 15260 (412) 624−5871 Fax: 412−624−1606 Email: apittler@pitt.edu TERMINATED: 06/13/2008 ATTORNEY TO BE NOTICED
David J. Porter Buchanan Ingersoll One Oxford Centre 301 Grant Street, 20th Floor

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 6 of 34

Pittsburgh, PA 15219 (412) 562−1318 Fax: (412) 562−1041 Email: david.porter@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

Amicus AARP

represented by Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Claimant PPG INDUSTRIES, INC.

represented by James F. Glunt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terrence H. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan M. Pittler (See above for address) TERMINATED: 06/13/2008 ATTORNEY TO BE NOTICED

David J. Porter (See above for address) ATTORNEY TO BE NOTICED

Lisa M. Passarello (See above for address) ATTORNEY TO BE NOTICED

V.
Counter Defendant
WADE C. BITTNER individually and on behalf of all others similarly situated

represented by Bruce C. Fox Obermayer Rebmann Maxwell &Hippel LLP 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
Laurie A. McCann (See above for address)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 7 of 34

LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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

Counter Defendant ARTHUR C. RUPERT

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

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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

Counter Defendant LINDA K. AUSTIN

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

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 8 of 34

ATTORNEY TO BE NOTICED

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

Counter Defendant LARRY L. CAMPBELL

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

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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

Counter Defendant KENNETH J. HUNT

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

Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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

Counter Claimant PPG INDUSTRIES, INC.

represented by Christian Antkowiak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 9 of 34

Jaime S. Tuite (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James F. Glunt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence H. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan M. Pittler (See above for address) TERMINATED: 06/13/2008 ATTORNEY TO BE NOTICED
David J. Porter (See above for address) ATTORNEY TO BE NOTICED
Lisa M. Passarello (See above for address) ATTORNEY TO BE NOTICED

V. Counter Defendant WADE C. BITTNER individually and on behalf of all others similarly situated
Counter Defendant ARTHUR C. RUPERT

represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa L. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 10 of 34

Counter Defendant LINDA K. AUSTIN
Counter Defendant LARRY L. CAMPBELL
Counter Defendant KENNETH J. HUNT

Melissa L. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa L. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie A. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa L. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie A. McCann

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 11 of 34
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa L. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Leonard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 05/24/2007
05/24/2007 05/29/2007
05/29/2007 06/04/2007 06/04/2007 06/28/2007
07/23/2007 07/23/2007 07/23/2007 07/24/2007 07/30/2007
08/06/2007

# Docket Text
1 COMPLAINT against PPG INDUSTRIES, INC. (Filing fee $ 350 receipt number 4417), filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Civil Cover Sheet # 2 Summons # 3 Receipt Filing Fee)(plh) (Entered: 05/25/2007)
Summons Issued as to PPG INDUSTRIES, INC. (plh) (Entered: 05/25/2007)
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: 05/29/2007)
3 CERTIFICATE OF SERVICE by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT re 2 Notice of ADR Designation, (Fox, Bruce) (Entered: 05/29/2007)
4 NOTICE of Appearance by Rudy A. Fabian on behalf of WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (Fabian, Rudy) (Entered: 06/04/2007)
5 NOTICE of Appearance by Melissa L. Evans on behalf of WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (Evans, Melissa) (Entered: 06/04/2007)
6 WAIVER OF SERVICE Returned Executed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. PPG INDUSTRIES, INC. waiver sent on 5/25/2007, answer due 7/24/2007. (Fox, Bruce) (Entered: 06/28/2007)
7 NOTICE of Appearance by James F. Glunt on behalf of PPG INDUSTRIES, INC. (Glunt, James) (Entered: 07/23/2007)
8 Stipulation for Extension of Time to Answer by PPG INDUSTRIES, INC. Answer due from PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 07/23/2007)
9 NOTICE of Appearance by Lisa M. Passarello on behalf of PPG INDUSTRIES, INC. (Passarello, Lisa) (Entered: 07/23/2007)
10 NOTICE of Appearance by Terrence H. Murphy on behalf of PPG INDUSTRIES, INC. (Murphy, Terrence) (Entered: 07/24/2007)
11 ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE Proposed Case Management Order and Rule 26 Meeting Report due by 9/10/2007. Case Management Conference set for 9/19/2007 08:45 AM before Arthur J. Schwab. Signed by Judge Arthur J. Schwab on 7/30/07. (smk) (Entered: 07/30/2007)
12 NOTICE of Appearance by Alan M. Pittler on behalf of PPG INDUSTRIES, INC. (Pittler, Alan) (Entered: 08/06/2007)

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08/07/2007
08/20/2007 08/21/2007 08/22/2007 09/10/2007 09/10/2007 09/10/2007 09/10/2007 09/11/2007 09/12/2007
09/13/2007
09/21/2007 09/21/2007 09/24/2007

13 First AMENDED COMPLAINT against PPG INDUSTRIES, INC.. PPG INDUSTRIES, INC. answer due 8/21/2007, filed by WADE C. BITTNER; ARTHUR C. RUPERT; LINDA K. AUSTIN; LARRY L. CAMPBELL; KENNETH J. HUNT. (Attachments: # 1 Exhibit A # 2 Exhibit B)(Fox, Bruce) (Entered: 08/07/2007)
14 Stipulation for Extension of Time to Answer by PPG INDUSTRIES, INC. Answer due from PPG INDUSTRIES, INC. on 9/10/2007. (Pittler, Alan) (Entered: 08/20/2007)
15 First MOTION to Extend Time to Move for Class Certification by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order)(Fox, Bruce) (Entered: 08/21/2007)
16 ORDER granting 15 Motion to Extend Time to Move for Class Certification. Signed by Judge Arthur J. Schwab on 8/22/07. (smk) (Entered: 08/22/2007)
17 MOTION to Dismiss Plaintiffs' ADEA Collective Action Claims re 13 Amended Complaint, by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A # 2 Proposed Order)(Glunt, James) (Entered: 09/10/2007)
18 BRIEF in Support re 17 MOTION to Dismiss Plaintiffs' ADEA Collective Action Claims re 13 Amended Complaint, filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 09/10/2007)
19 ANSWER to Amended Complaint, COUNTERCLAIM against all plaintiffs by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A to Counterclaim # 2 Exhibit B to Counterclaim)(Glunt, James) (Entered: 09/10/2007)
20 Disclosure Statement identifying None as corporate partent, by PPG INDUSTRIES, INC. (Glunt, James) Modified on 9/11/2007 (plh) (Entered: 09/10/2007)
ORDER REQUIRING RESPONSE to 17 Motion to Dismiss. Responses due by 9/17/2007 at noon. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order or Notice of the Court on the matter. Signed by Judge Arthur J. Schwab on 9/11/07. (smk) (Entered: 09/11/2007)
21 Unopposed MOTION to Continue Case Management Conference and Extend Time to File Rule 26(f) Report and Opposition to Defendant's Motion to Dismiss by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order)(Fox, Bruce) (Entered: 09/12/2007)
22 ORDER granting 21 Motion to Continue and Resetting Deadlines: Response to 17 Motion to Dismiss due by 9/24/2007 at 5:00 PM. Proposed Case Management Order and Rule 26 Meeting Report due by 9/21/2007 (parties shall also select a special master in addition tothe ADR neutral). The Initial Case Management Conference is rescheduled to 9/26/2007 08:15 AM before Arthur J. Schwab. Signed by Judge Arthur J. Schwab on 9/13/07. (smk) (Entered: 09/13/2007)
23 STIPULATION selecting ADR process by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT(Fox, Bruce) (Entered: 09/21/2007)
24 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Exhibit Plaintiffs Proposed Case Management Plan and Proposed CMO # 2 Exhibit Defendant PPG Proposed Case Management Order)(Fox, Bruce) (Entered: 09/21/2007)
25 BRIEF in Opposition re 17 MOTION to Dismiss Plaintiffs' ADEA Collective Action Claims re 13 Amended Complaint, filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Exhibit D # 5 Exhibit E # 6 Exhibit F # 7 Exhibit G)(Fox, Bruce) (Entered: 09/24/2007)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 13 of 34

09/26/2007 09/26/2007 09/26/2007 09/26/2007 09/28/2007 10/03/2007 10/09/2007 10/09/2007 10/09/2007 10/09/2007 10/10/2007
10/10/2007
10/10/2007

Minute Entry for proceedings held before Judge Arthur J. Schwab: Case Management Conference held on 9/26/2007. Case Management Order issued. Parties agreed to mediate before Louis Kushner. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (Court Reporter K. Earley) (ms) (Entered: 09/26/2007)
26 ORDER denying 17 Motion to Dismiss. Signed by Judge Arthur J. Schwab on 9/26/07. (ms) (Entered: 09/26/2007)
27 ORDER REFERRING CASE to Mediation. Louis Kushner is appointed as mediator. Mediation shall occur by 11/26/07. Signed by Judge Arthur J. Schwab on 9/26/07. (ms) (Entered: 09/26/2007)
28 CASE MANAGEMENT ORDER: Exchange of required Rule 26(a)(1) information due by 10/10/2007, Amended Pleadings due by 10/26/2007, Phase I Discovery due by 12/28/2007, Summary Judgment due by 1/17/2008, Response to Summary Judgment due by 1/28/2008. Signed by Judge Arthur J. Schwab on 9/26/07. (ms) (Entered: 09/26/2007)
29 ORDER REFERRING CASE to Special Master. Kevin P. Lucas rep by Kevin P. Lucas appointed. Signed by Judge Arthur J. Schwab on 9/27/07. (smk) (Entered: 09/28/2007)
30 STIPULATION for Extension of Time to Respond to Answer and Counterclaim by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 10/03/2007)
31 MOTION to Dismiss Voluntarily Count III of First Amended Complaint Pursuant to Rule 41(a)(2) by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order)(Fox, Bruce) (Entered: 10/09/2007)
32 MOTION to Dismiss Counterclaim and Strike Second and Fourth Affirmative Defenses re 19 Answer to Amended Complaint, Counterclaim by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Brief in Support of Motion # 2 Proposed Order)(Fox, Bruce) (Entered: 10/09/2007)
MOTION to Strike Affirmative Defenses (filed with Docket Entry # 32 Motion to Dismiss) by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (sjs ) (Entered: 10/10/2007)
36 BRIEF in Support re 32 MOTION to Dismiss Counterclaim and MOTION to Strike Second and Fourth Affirmative Defenses re 19 Answer to Amended Complaint and Counterclaim, filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. "Document previously filed electronically." (sjs ) (Entered: 10/10/2007)
33 Errata re 32 Motion to Dismiss Defendant's Counterclaim and Strike Affirmative Defenses by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. Reason for Correction: Separating Motion and Brief in Support of Motion to Dismiss Defendant's Counterclaim and Strike Affirmative Defenses. (Attachments: # 1 Proposed Order)(Fox, Bruce) Modified on 10/10/2007 to add document linkage (sjs ). (Entered: 10/10/2007)
34 Errata Brief in Support of Motion to Dismiss Defendant's Counterclaim and Strike Affirmative Defenses by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. Reason for Correction: Separating Motion and Brief in Support of Motion to Dismiss Defendant's Counterclaim and Strike Affirmative Defenses. (Fox, Bruce) Modified on 10/10/2007 (sjs ). ERROR: Wrong event selected. CORRECTION: Redocketed by Clerk at Entry # 36 as a Brief in Support of Motion to Dismiss Counterclaim and Motion to Strike Affirmative Defenses. This document is terminated and removed from public view. (Entered: 10/10/2007)
35 NOTICE of Appearance by Charles A. Lamberton on behalf of WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (Lamberton, Charles) (Entered: 10/10/2007)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 14 of 34

10/10/2007
10/10/2007 10/10/2007 10/11/2007 10/12/2007 10/15/2007 10/16/2007 10/18/2007 10/19/2007
10/19/2007 10/22/2007 10/22/2007

CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 32 MOTION to Dismiss Counterclaim and Strike Second and Fourth Affirmative Defenses re 19 Answer to Amended Complaint, Counterclaim. ERROR: MULTIPLE Relief Motion Filed as One Relief. CORRECTION: Attorney advised in future that Motions of this nature are to be filed using the Motion Event and choosing all the Reliefs requested by holding the Control Key down and clicking all the reliefs sought in said motion. Clerk of Court docketed Motion to Strike Affirmative Defenses. This message is for informational purposes only. (sjs ) (Entered: 10/10/2007)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: re 34 Errata. Wrong event selected. CORRECTION: Re−docketed as a Brief in Support of 32 Motion to Dismiss Counterclaim and Motion to Strike Affirmative Defenses. This message is for informational purposes only. (sjs ) (Entered: 10/10/2007)
ORDER REQUIRING RESPONSE to 32 Motion to Dismiss. Responses due by 10/19/2007. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. Signed by Judge Arthur J. Schwab on 10/10/07. (smk) (Entered: 10/10/2007)
ORDER REQUIRING RESPONSE or CONSENT to 31 Motion to Dismiss. Response or Consent due by 10/17/2007. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order or Notice of the Court on the matter. Signed by Judge Arthur J. Schwab on 10/11/07. (smk) (Entered: 10/11/2007)
37 RESPONSE to Motion re 31 MOTION to Dismiss Voluntarily Count III of First Amended Complaint Pursuant to Rule 41(a)(2) filed by PPG INDUSTRIES, INC.. (Pittler, Alan) (Entered: 10/12/2007)
ORDER. After careful consideration of plaintiff's motion to dismiss Doc. No. 31 and defendant's response thereto Doc. No. 37 , it is hereby ORDERED that said motion is DENIED. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. Signed by Judge Arthur J. Schwab on 10−15−07. (nam) (Entered: 10/15/2007)
38 STIPULATION to Voluntarily Dismiss Count III of Plaintiff's First Amended Complaint With Prejudice by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 10/16/2007)
39 ORDER APPROVING 38 Stipulation to Voluntary Dismiss Count III of the First Amended Complaint with Prejudice. SO ORDERED. Signed by Judge Arthur J. Schwab on 10/18/07. (smk) (Entered: 10/18/2007)
40 RESPONSE to Motion re MOTION to Strike, 32 MOTION to Dismiss Counterclaim and Strike Second and Fourth Affirmative Defenses re 19 Answer to Amended Complaint, Counterclaim MOTION to Dismiss Counterclaim and Strike Second and Fourth Affirmative Defenses re 19 Answer to Amended Complaint, Counterclaim filed by PPG INDUSTRIES, INC. (Pittler, Alan) Modified on 10/22/2007 (plh) This document removed from public view. (Entered: 10/19/2007)
41 BRIEF by PPG INDUSTRIES, INC. in Opposition to 32 MOTION to Dismiss Counterclaim and Strike Second and Fourth Affirmative Defenses re 19 Answer to Amended Complaint, Counterclaim MOTION to Dismiss Counterclaim and Strike Second and Fourth Affirmative Defenses re 19 Answer to Amended Complaint, Counterclaim. filed by PPG INDUSTRIES, INC. (plh) (Entered: 10/22/2007)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: re 40 Response to Motion, Wrong event selected. CORRECTION: Re−docketed as Brief in Opposition. This message is for informational purposes only. (plh) (Entered: 10/22/2007)
42 Notice of ADR proceeding: The litigants are advised that at the conclusion of the ADR process they must submit a completed questionnaire to the Clerk of Courts. The questionnaire is available on the Court's website at www.pawd.uscourts.gov and click on the ADR icon.Mediation Conference set for 10/23/2007 01:00 PM(Kushner, Louis) (Entered: 10/22/2007)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 15 of 34

10/22/2007 10/23/2007 10/23/2007 10/24/2007 10/30/2007
11/13/2007 11/20/2007
11/20/2007 11/20/2007 11/20/2007 11/26/2007 11/27/2007

43 MOTION for Leave to File Reply Brief in Support of Plaintiffs' Motion to Dismiss Defendant's Counterclaim and to Strike Affirmative Defenses by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Reply Brief in Support of Plaintiffs' Motion to Dismiss Defendant's Counterclaim and to Strike Affirmative Defenses # 2 Proposed Order)(Fox, Bruce) (Entered: 10/22/2007)
ORDER granting 43 Motion for Leave to File Reply Brief. Reply due by 10/23/2007 at 3:00 p.m. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. Signed by Judge Arthur J. Schwab on 10−23−07. (nam) (Entered: 10/23/2007)
44 REPLY BRIEF by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT in Support of Plaintiffs' Motion to Dismiss Defendant's Counterclaim and to Strike Affirmative Defenses filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 10/23/2007)
45 ORDER denying 32 Motion to Dismiss; denying re: w/ 32 Motion to Strike. Signed by Judge Arthur J. Schwab on 10−24−07. (nam) (Entered: 10/24/2007)
46 REPORT of Mediation: Settlement has not been reached. Mediation will be continued on an agreed upon date. The follow up mediation has not yet been scheduled. For cases participating in the Court's ADR pilot project, the parties are reminded of their obligation to complete the ADR questionnaire and return same to the Clerk of Court within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon.Mediation session was held on 10/23/2007.(Kushner, Louis) (Entered: 10/30/2007)
47 ANSWER to Counterclaim by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT.(Fox, Bruce) (Entered: 11/13/2007)
48 MOTION for Leave to File Second Amended Complaint by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order # 2 Second Amended Complaint # 3 Exhibit A to Second Amended Complaint # 4 Exhibit B to Second Amended Complaint # 5 Exhibit C to Second Amended Complaint # 6 Exhibit D to Second Amended Complaint # 7 Exhibit E to Second Amended Complaint # 8 Envelope F to Second Amended Complaint # 9 Exhibit G to Second Amended Complaint # 10 Exhibit H to Second Amended Complaint # 11 Exhibit I to Second Amended Complaint # 12 Exhibit J to Second Amended Complaint # 13 Exhibit K to Second Amended Complaint) (Fox, Bruce) (Entered: 11/20/2007)
49 BRIEF in Support re 48 MOTION for Leave to File Second Amended Complaint filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 11/20/2007)
50 Notice of ADR proceeding: The litigants are advised that at the conclusion of the ADR process they must submit a completed questionnaire to the Clerk of Courts. The questionnaire is available on the Court's website at www.pawd.uscourts.gov and click on the ADR icon.Mediation Conference set for 12/13/2007 10:00 AM (Kushner, Louis) (Entered: 11/20/2007)
51 BRIEF in Opposition re 48 MOTION for Leave to File Second Amended Complaint During Phase I filed by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 11/20/2007)
52 ORDER denying 48 Motion for Leave to File Second Amended and Supplemental Collective Action Complaint. Signed by Judge Arthur J. Schwab on 11/26/07. (smk) (Entered: 11/26/2007)
53 NOTICE by KEVIN P. LUCAS Order (Lucas, Kevin) (Entered: 11/27/2007)

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12/03/2007 12/03/2007
12/05/2007
12/17/2007
01/10/2008 01/28/2008 01/28/2008 02/07/2008 02/14/2008 02/14/2008 02/14/2008 03/10/2008 03/17/2008 03/17/2008
03/17/2008
03/17/2008
03/18/2008

54 STIPULATION Discovery Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 12/03/2007)
55 Joint MOTION for Extension of Time to Complete Discovery for Phase I, Recommended by Special Master Kevin Lucas by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 12/03/2007)
56 ORDER granting 55 Motion for Extension of Time to Complete Phase I Discovery. Phase I Discovery due by 2/28/2008. Summary Judgment due by 3/20/2008. Response to Summary Judgment due by 3/31/2008. Signed by Judge Arthur J. Schwab on 12/05/07. (eca) (Entered: 12/05/2007)
57 REPORT of Mediation: Settlement has not been reached. Another mediation will be scheduled. For cases participating in the Court's ADR pilot project, the parties are reminded of their obligation to complete the ADR questionnaire and return same to the Clerk of Court within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. Mediation session was held on 12/13/2007. (Kushner, Louis) (Entered: 12/17/2007)
58 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 01/10/2008)
59 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 01/28/2008)
60 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 01/28/2008)
61 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 02/07/2008)
62 STIPULATION Confidentiality Stipulation by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Evans, Melissa) (Entered: 02/14/2008)
63 SPECIAL MASTER REPORT AND RECOMMENDATION Amendment to Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 02/14/2008)
64 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 02/14/2008)
65 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 03/10/2008)
66 NOTICE of Appearance by Jaime S. Tuite on behalf of PPG INDUSTRIES, INC. (Tuite, Jaime) (Entered: 03/17/2008)
67 First MOTION for Extension of Time to File Motions for Summary Judgment by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) Modified on 3/18/2008 (plh) This document removed from public view − redocketed at 69 (Entered: 03/17/2008)
68 Errata re 67 Motion for Extension of Time to File Motions for Summary Judgment by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. Reason for Correction: Error in the text of the Document. (Fox, Bruce) Modified on 3/18/2008 (plh) Per Attorney document filed in error and redocketed at 69 (Entered: 03/17/2008)
69 First MOTION for Extension of Time to File Motions for Summary Judgment by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 03/17/2008)
70 ORDER granting 69 Motion for Extension of Time to File Motions for Summary Judgment. Summary Judgment due by 3/27/2008, Response to Summary Judgment

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 17 of 34

03/25/2008
03/26/2008
03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 03/27/2008 04/02/2008

due by 4/7/2008. Signed by Judge Arthur J. Schwab on 03/18/08. (eca) (Entered: 03/18/2008)
71 Joint MOTION for Leave to File Briefs Exceeding Page Limitation and to File Confidential Information Under Seal by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 03/25/2008)
72 ORDER granting 71 Motion for Leave to File Briefs Exceeding Page Limitation and to File Confidential Information Under Seal. The parties may file briefs that exceed 25 pages in length, but ARE NOT to exceed 35 pages. It is further ORDERED that the parties may file documents under seal as defined by the Confidentiality Stipulation 62 . Signed by Judge Arthur J. Schwab on 03/26/08. (eca) (Entered: 03/26/2008)
73 MOTION for Judgment on the Pleadings Limiting Temporal Scope of Plaintiff's Claims by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 03/27/2008)
74 BRIEF in Support re 73 MOTION for Judgment on the Pleadings Limiting Temporal Scope of Plaintiff's Claims filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 03/27/2008)
75 MOTION for Summary Judgment as to Plaintiff Kenneth J. Hunt by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 03/27/2008)
76 BRIEF in Support re 75 MOTION for Summary Judgment as to Plaintiff Kenneth J. Hunt filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 03/27/2008)
77 MOTION for Summary Judgment as to Plaintiff Arthur C. Rupert by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 03/27/2008)
78 BRIEF in Support re 77 MOTION for Summary Judgment as to Plaintiff Arthur C. Rupert filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 03/27/2008)
79 MOTION for Summary Judgment as to Plaintiff Larry L. Campbell by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 03/27/2008)
80 BRIEF in Support re 79 MOTION for Summary Judgment as to Plaintiff Larry L. Campbell filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 03/27/2008)
81 MOTION for Summary Judgment as to Plaintiff Linda K. Austin by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 03/27/2008)
82 BRIEF in Support re 81 MOTION for Summary Judgment as to Plaintiff Linda K. Austin filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 03/27/2008)
83 MOTION for Summary Judgment as to Plaintiff Wade C. Bittner by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 03/27/2008)
84 BRIEF in Support re 83 MOTION for Summary Judgment as to Plaintiff Wade C. Bittner filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 03/27/2008)
85 SEALED MOTION by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (plh) (Entered: 03/28/2008)
86 SEALED DOCUMENT by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (plh) (Entered: 03/28/2008)
ORDER SETTING DEADLINE FOR RESPONSE to 73 Motion for Judgment on the Pleadings. Responses due by 4/7/2008 Signed by Judge Arthur J. Schwab on 04/02/08. Text−only entry; no PDF document will issue. This text−only entry

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 18 of 34

04/03/2008 04/03/2008 04/04/2008 04/04/2008 04/11/2008 04/14/2008 04/14/2008 04/15/2008
04/15/2008 04/15/2008 04/17/2008 04/21/2008
04/21/2008

constitutes the Order of the Court or Notice on the matter. (eca) (Entered: 04/02/2008)
87 Joint MOTION for Extension of Time to File Response/Reply as to Response/Briefing Schedule, 85 SEALED MOTION, 83 MOTION for Summary Judgment as to Plaintiff Wade C. Bittner by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 04/03/2008)
88 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 04/03/2008)
89 ORDER REFERRING MOTION TO SPECIAL MASTER. Document 87 Joint Motion for Extension of Time is referred to Special Master Kevin P. Lucas. Signed by Judge Arthur J. Schwab on 04/04/08. (eca) (Entered: 04/04/2008)
90 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 04/04/2008)
91 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 04/11/2008)
92 BRIEF in Opposition re 85 SEALED MOTION by Plaintiffs for Summary Judgment filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 04/14/2008)
93 BRIEF in Opposition re 73 MOTION for Judgment on the Pleadings Limiting Temporal Scope of Plaintiff's Claims filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 04/14/2008)
94 Appendix by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit 5 # 2 Exhibit 11 # 3 Exhibit 12 # 4 Exhibit 75 # 5 Exhibit 106 # 6 Exhibit 153 # 7 Exhibit 171 # 8 Exhibit 174 # 9 Exhibit 175 # 10 Exhibit 176 # 11 Exhibit 177 # 12 Exhibit 178 # 13 Cover Sheets for Exhibits to Be Filed Under Seal # 14 Austin Deposition Transcript Excerpts # 15 Bittner Deposition Transcript Excerpts # 16 Hunt Deposition Transcript Excerpts # 17 Rupert Deposition Transcript Excerpts # 18 Armbrust Deposition Transcript Excerpts # 19 Buhr Deposition Transcript Excerpts # 20 Garber Deposition Transcript Excerpts # 21 Jones Deposition Transcript Excerpts # 22 LeBoeuf Deposition Transcript Excerpts # 23 Marek Deposition Transcript Excerpts # 24 Prazenica Part I Deposition Transcript Excerpts # 25 Wyman Deposition Transcript Excerpts # 26 Zoulek Deposition Transcript Excerpts # 27 Exhibit 17 # 28 Under Seal Cover Sheets for Deposition Transcript Excerpts # 29 Affidavit of Linda Austin # 30 Affidavit of Wade Bittner # 31 Affidavit of Larry Campbell # 32 Affidavit Kenneth Hunt # 33 Affidavit of Arthur C. Rupert) (Fox, Bruce) Modified on 4/16/2008 (plh) (Documents 14 thru 26 SEALED because of sensitive information) (Entered: 04/15/2008)
95 SEALED DOCUMENT by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (plh) (Entered: 04/16/2008)
96 JOINT SEALED DOCUMENT by WADE C. BITTNER, PPG INDUSTRIES, INC., LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (plh) (Entered: 04/16/2008)
Remark: CD received from Pltf's Counsel and forward to Judge Schwab's Chambers. (plh) (Entered: 04/17/2008)
97 MOTION for Leave to File Reply Brief on Motion for Summary Judgment by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order # 2 Plaintiffs' Reply Brief on Motion for Summary Judgment # 3 Exhibit A to Reply Brief # 4 Exhibit B to Reply Brief # 5 Exhibit C to Reply Brief # 6 Exhibit D to Reply Brief) (Fox, Bruce) (Entered: 04/21/2008)
98 SEALED DOCUMENT as to Kenneth J. Hunt by PPG INDUSTRIES, INC. (Disk attached and forward to Judge's chambers) (plh) (Entered: 04/23/2008)

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04/21/2008 04/21/2008 04/21/2008 04/21/2008 04/24/2008 04/25/2008
05/09/2008 05/12/2008 05/12/2008 05/23/2008 06/05/2008 06/12/2008 06/13/2008 06/18/2008
07/09/2008
07/10/2008
07/10/2008

99 SEALED DOCUMENT as to Larry L. Campbell by PPG INDUSTRIES, INC. (Disk attached and forward to Judge's Chambers) (plh) (Entered: 04/23/2008)
100 SEALED DOCUMENT as to Linda K. Austin by PPG INDUSTRIES, INC. (Disk attached and forward to Judge's Chambers) (plh) (Entered: 04/23/2008)
101 SEALED DOCUMENT as to Arthur C. Rupert by PPG INDUSTRIES, INC. (Disk attached and forward to Judge's Chambers) (plh) (Entered: 04/23/2008)
102 SEALED DOCUMENT as to Wade C. Bittner by PPG INDUSTRIES, INC. (Disk attached and forward to Judge's Chambers) (plh) (Entered: 04/23/2008)
103 MOTION for Leave to File Supplemental Brief Supporting Defendant's Motion for Judgment on the Pleadings by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A (Proposed Reply Brief)) (Glunt, James) (Entered: 04/24/2008)
ORDER REFERRING MOTIONS TO SPECIAL MASTER KEVIN LUCAS: 97 MOTION for Leave to File Reply Brief on Motion for Summary Judgment and 103 MOTION for Leave to File Supplemental Brief Supporting Defendant's Motion for Judgment on the Pleadings are referred to Special Master Kevin Lucas. Signed by Judge Arthur J. Schwab on 04/25/08. 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: 04/25/2008)
104 SPECIAL MASTER REPORT AND RECOMMENDATION Order by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 05/09/2008)
105 SPECIAL MASTER REPORT AND RECOMMENDATION Order re Docket No. 97 by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 05/12/2008)
106 SPECIAL MASTER REPORT AND RECOMMENDATION Order re Docket No. 103 by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 05/12/2008)
107 SPECIAL MASTER REPORT AND RECOMMENDATION Order re Discovery Motion (No Docket No.) by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 05/23/2008)
108 NOTICE of Appearance by Colin W. Murray on behalf of WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (Murray, Colin) (Entered: 06/05/2008)
109 MOTION to Withdraw as Attorney by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Pittler, Alan) Modified on 6/13/2008. (plh) (Entered: 06/12/2008)
110 ORDER granting 109 Motion to Withdraw as Attorney. Attorney Alan M. Pittler terminated. Signed by Judge Arthur J. Schwab on 06/13/08. (eca) (Entered: 06/13/2008)
111 ORDER REGARDING CONSOLIDATION. Civil Action No. 08−616 is hereby consolidated with this civil action for all pretrial and trial purposes. PPG's obligation to respond to the Complaint in Civil Action No. 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 this civil action. Signed by Judge Arthur J. Schwab on 06/18/08. (eca) (Entered: 06/18/2008) (Entered: 06/18/2008)
112 MOTION to Strike by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order) (Murphy, Terrence) Modified on 7/10/2008. (plh) This document removed from public view. (Entered: 07/09/2008)
ORDER SETTING DEADLINE FOR RESPONSE to 112 Motion to Strike. Response to Motion due by 7/18/2008. Signed by Judge Arthur J. Schwab on 07/10/08. 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: 07/10/2008)
113 Errata re 112 Motion to Strike by PPG INDUSTRIES, INC.. Reason for Correction: Correcting title of Motion to "Notice" because Plaintiffs' Unauthorized

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07/18/2008 07/21/2008 10/24/2008 10/27/2008 12/19/2008 01/13/2009 01/13/2009 01/13/2009 01/22/2009
02/04/2009
02/05/2009 02/05/2009 02/11/2009

Supplement was not filed with the court but rather with the Special Master only. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order) (Murphy, Terrence) (Entered: 07/10/2008)
114 RESPONSE to Motion re 112 Motion to Strike filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 07/18/2008)
115 ORDER REFERRING TO SPECIAL MASTER. 113 Notice of Motion to Strike is hereby REFERRED to Special Master Kevin P. Lucas. Signed by Judge Arthur J. Schwab on 07/21/08. (eca) (Entered: 07/21/2008)
116 Joint MOTION for a Court Order Authorizing Special Master to Rule on Motion for Judgment on the Pleadings by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 10/24/2008)
117 ORDER granting 116 Motion for a Court Order authorizing Special Master to rule on 73 Motion for Judgment on the Pleadings. Kevin Lucas is hereby authorized to rule on 73 . Signed by Judge Arthur J. Schwab on 10/27/08. (eca) (Entered: 10/27/2008)
118 NOTICE of Scheduling during week of January 12, 2009 due to Legal Holidays under Fed.R.Civ.P.6(a) by KEVIN P. LUCAS (Lucas, Kevin) (Entered: 12/19/2008)
119 SPECIAL MASTER REPORT AND RECOMMENDATION Order re Docket No. 112 , no Docket # and Docket # 113 by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 01/13/2009)
120 SPECIAL MASTER REPORT AND RECOMMENDATION (re no Docket #) by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 01/13/2009)
121 SPECIAL MASTER REPORT AND RECOMMENDATION (re no Docket #) by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 01/13/2009)
ORDER ADOPTING 119 SPECIAL MASTER REPORT AND RECOMMENDATION filed by KEVIN P. LUCAS, 120 , SPECIAL MASTER REPORT AND RECOMMENDATION filed by KEVIN P. LUCAS, 121 , SPECIAL MASTER REPORT AND RECOMMENDATION filed by KEVIN P. LUCAS, AND DENYING 112 Motion to Strike filed by PPG INDUSTRIES, INC, in the absence of any Objections as required by the Order Referring Case to a Special Master 29 within five days of communication of Orders regarding case management or discovery disputes to the parties. Signed by Judge Arthur J. Schwab on 1/22/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (mjl) (Entered: 01/22/2009)
122 SCHEDULING ORDER. IT IS HEREBY ORDERED that a status conference for counsel and special master shall be held regarding the above−captioned matter on 02/12/09 at 9:30 AM to discuss the continued delay of the issuance of a Report and Recommendation by the special master regarding the pending motions for judgment on the pleadings and for summary judgment in this matter. Chief trial counsel and special master must attend. Clients shall be available by telephone. If special master issues a Report and Recommendation for all of the above referenced motions for summary judgment on or before 02/10/09, only counsel need attend the status conference. Signed by Judge Arthur J. Schwab on 02/04/09. (eca) (Entered: 02/04/2009)
123 SPECIAL MASTER REPORT AND RECOMMENDATION Re Docket Nos. 75 and 83 by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 02/05/2009)
124 SPECIAL MASTER REPORT AND RECOMMENDATION Re: Docket Nos. 77 , 79 and 81 by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 02/05/2009)
125 SPECIAL MASTER REPORT AND RECOMMENDATION Regarding Docket No. 73 by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 02/11/2009)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 21 of 34

02/11/2009 02/12/2009 02/19/2009 02/19/2009 02/25/2009 02/25/2009 02/25/2009 02/26/2009 02/26/2009
02/27/2009 03/05/2009
03/08/2009
03/09/2009

126 SPECIAL MASTER REPORT AND RECOMMENDATION Regarding Docket Nos. 85 , 77 and 79 by KEVIN P. LUCAS. (Lucas, Kevin) (Entered: 02/11/2009)
127 Minute Entry for proceedings held before Judge Arthur J. Schwab: Status Conference held on 2/12/2009. (Court Reporter: Sandy Wenger) (eca) (Entered: 02/12/2009)
128 OBJECTIONS to Report and Recommendations of Special Master by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 02/19/2009)
129 OBJECTIONS to 124 SPECIAL MASTER REPORT AND RECOMMENDATION, 126 SPECIAL MASTER REPORT AND RECOMMENDATION, 125 SPECIAL MASTER REPORT AND RECOMMENDATION by KEVIN P. LUCAS. (Glunt, James) (Entered: 02/19/2009)
130 BRIEF in Opposition to 129 Objections, to Report &Recommendation filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) Modified on 2/26/2009 ERROR: Wrong event selected. Document removed from public view and redocketed correctly. (ksa) (Entered: 02/25/2009)
131 RESPONSE to 128 Objections, filed by PPG INDUSTRIES, INC. (Glunt, James) (Entered: 02/25/2009)
132 RESPONSE to 129 Objections, filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. "Document previously filed electronically" (ksa) (Entered: 02/26/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 130 Brief in Opposition − Other. ERROR: Wrong event selected. CORRECTION: Re−docketed as Response other. This message is for informational purposes only. (ksa) (Entered: 02/26/2009)
133 ORDER Adopting Special Master's Reports and Recommendations at documents nos. 123 , 124 and 126 ; granting 75 Motion for Summary Judgment; denying 77 Motion for Summary Judgment; denying 79 Motion for Summary Judgment; denying 81 Motion for Summary Judgment; granting 83 Motion for Summary Judgment; granting in part and denying in part 85 Sealed Motion. Signed by Judge Arthur J. Schwab on 02/26/09. (mjl) (Entered: 02/26/2009)
134 ORDER granting 73 Motion for Judgment on the Pleadings. Signed by Judge Arthur J. Schwab on 2/27/09. (mjl) (Entered: 02/27/2009)
TEXT ORDER − − The Court hereby schedules a Status Conference for March 25, 2009, at 2:00 PM, to discuss in detail the process for determining (a) whether the case should proceed as a class action or individual actions and (b) other future case management issues. These determinations will be made by the Court without reference to the Special Master. Paragraphs (a) and (d) of the Order Referring Case to Special Master (doc. no. 29 ) are withdrawn. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. Signed by Judge Schwab on 03/4/09. (ms) (Entered: 03/05/2009)
135 MOTION for Attorney Fees and Costs of Litigation by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Affidavit of Bruce C. Fox, # 2 Fees Schedule of ORMHLLP, # 3 Declaration of Charles A. Lamberton, # 4 Declaration of Colleen Ramage Johnston, # 5 Declaration of James H. Logan, # 6 Proposed Order) (Fox, Bruce) (Entered: 03/08/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 135 Motion for Attorney Fees. Response to Motion due by 3/19/2009. Signed by Judge Arthur J. Schwab on 03/06/09. 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: 03/09/2009)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 22 of 34

03/11/2009 03/13/2009 03/16/2009
03/19/2009 03/19/2009
03/19/2009
03/19/2009 03/20/2009 03/20/2009 03/20/2009 03/20/2009 03/20/2009

136 DECLARATION re 135 MOTION for Attorney Fees and Costs of Litigation by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT Affiant: James B. Lieber. (Fox, Bruce) (Entered: 03/11/2009)
137 ORDER regarding 133 . Consistent with the Order of February 26, 2009 133 , Defendant shall file any conforming amendments to its Answer and Counterclaim (Doc. No. 19 ) on or before March 24, 2009. Signed by Judge Arthur J. Schwab on 3/13/09. (mjl) Modified on 3/16/2009. (plh) (Entered: 03/13/2009)
By noon on March 23, 2009, plaintiffs and defendant shall file their respective proposed order(s) relating to class action determination/ issues. (See Text Order of March 5, 2009, scheduling status conference.) Signed by Judge Arthur J. Schwab on 3/16/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (mjl) (Entered: 03/16/2009)
138 MOTION for Default Judgment against PPG INDUSTRIES, INC. by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 03/19/2009)
139 MOTION for Leave to File Brief in Support of Plaintiffs' Motion for Conditional Class Certification and Approval to Send ADEA Notice Pursuant to FLSA Section 16(b) by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Brief in Support of Plaintiffs' Motion for Conditional Class Certification and Approval to Send ADEA Notice Pursuant to FLSA Section 16(b), # 2 Proposed Order) (Fox, Bruce) (Entered: 03/19/2009)
140 Errata re 139 Motion for Leave to File, Brief Exceeding Page Limit by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. Reason for Correction: Wrong Title of Motion for Leave Entered (Should be Motion for Leave to File Brief Exceeding Page Limit). (Attachments: # 1 Brief in Support of Plaintiffs' Motion for Conditional Class Certification and Approval to Send ADEA Notice Pursuant to FLSA Section 16(b), # 2 Proposed Order) (Fox, Bruce) (Entered: 03/19/2009)
141 RESPONSE to Motion re 135 Motion for Attorney Fees, filed by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Glunt, James) (Entered: 03/19/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 138 Motion for Default Judgment. Response to Motion due by 3/26/2009 at NOON. Signed by Judge Arthur J. Schwab on 03/20/09. 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: 03/20/2009)
142 ORDER granting 139 Motion for Leave to File Brief in Support of Plaintiff's Motion for Certification and Approval to Send ADEA Notice pursuant to FLSA Section 16(b) in excess of fifteen pages in length, but not in excess of 25 pages. Signed by Judge Arthur J. Schwab on 03/20/09. (eca) (Entered: 03/20/2009)
143 NOTICE of Appearance by Christian Antkowiak on behalf of PPG INDUSTRIES, INC. (Antkowiak, Christian) (Entered: 03/20/2009)
144 MOTION for Leave to File Under Seal, Exhibit Attached to Brief in Support of Plaintiffs' Motion for Conditional Class Certification and Court−Facilitated Notice by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 03/20/2009)
145 MOTION to Certify Class (Motion for Conditional Class Certification and Court−Facilitated Notice) by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Notice, # 2 Proposed Consent Form, # 3 Proposed Order) (Fox, Bruce) (Entered: 03/20/2009)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 23 of 34

03/20/2009
03/23/2009 03/23/2009 03/23/2009 03/23/2009 03/23/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/25/2009 03/25/2009

146 BRIEF in Support re 145 Motion to Certify Class, filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Affidavit of Bruce C. Fox, Esquire, # 2 Second Affidavit of Arthur C. Rupert, # 3 Plaintiffs' Affidavits in Support of Second Affidavit of Arthur C. Rupert, # 4 Plaintiffs' EEOC Charges in Support of Second Affidavit of Arthur C. Rupert, # 5 Excerpts from Joint Concise Statement of Material Facts, # 6 Draft Expert Report of Len Cupingood (Cover Sheet), # 7 Under Seal Exhibits Cover Sheet, # 8 Plaintiffs' Fourth Set of Discovery Requests Directed to Defendant, # 9 Exhibit 5−RIF Guidelines, # 10 Exhibit 106−Other Benefits Plans: Salaried Severance Plan, # 11 Exhibit 174−Defendant's Response to Plaintiffs' First Set of Interrogatories and Requests for Production of Documents, # 12 Excerpts from the Armbrust Deposition, # 13 Excerpts from the Buhr Deposition, # 14 Excerpts from the Garber Deposition, # 15 Excerpts from the Jones Deposition, # 16 Excerpts from the Marek Deposition, # 17 Excerpts from the Prazenica Vol. I Deposition, # 18 Excerpts from the Wyman Deposition, # 19 Excerpts from the Zoulek Deposition) (Fox, Bruce) (Entered: 03/20/2009)
147 Proposed Order Relating to Class Action Determination/Issues by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 03/23/2009)
148 Proposed Order Relating to Class Action Determination/Issues by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 03/23/2009)
149 ORDER granting 144 Motion for Leave to File Under Seal Exhibit Attached to Brief in Suppport of Plaintiffs' Motion for Conditional Class Certification and Court−Facilitated Notice. Signed by Judge Arthur J. Schwab on 03/23/09. (eca) (Entered: 03/23/2009)
150 SEALED DOCUMENT by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT (Attachments: # 1 Exhibit) (plh) (Entered: 03/23/2009)
151 RESPONSE to Motion re 138 Motion for Default Judgment filed by PPG INDUSTRIES, INC.. (Passarello, Lisa) (Entered: 03/23/2009)
152 ORDER denying 135 Motion for Attorney Fees. Signed by Judge Arthur J. Schwab on 3/24/09. (mjl) (Entered: 03/24/2009)
153 MOTION for Default against PPG INDUSTRIES, INC. by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 03/24/2009)
154 ORDER denying 138 Plaintiffs' Motion for Default Judgment; denying 153 Plaintiffs' Motion for Entry of Default. Signed by Judge Arthur J. Schwab on 3/24/09. (ms) (Entered: 03/24/2009)
155 MOTION for Reconsideration re 152 Order on Motion for Attorney Fees by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 03/24/2009)
156 BRIEF in Support re 155 Motion for Reconsideration filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 03/24/2009)
157 Amended re: 13 ANSWER to Complaint as Consolidated COUNTERCLAIM Seeking Restitution against all plaintiffs by PPG INDUSTRIES, INC. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Glunt, James) Modified on 3/25/2009. (plh) (Entered: 03/24/2009)
158 ORDER denying 155 Motion for Reconsideration. Signed by Judge Arthur J. Schwab on 03/25/09. (eca) (Entered: 03/25/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 157 Answer to Complaint, Counterclaim. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only.

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 24 of 34

03/25/2009 03/26/2009 03/26/2009
03/26/2009
03/26/2009
03/27/2009 04/01/2009 04/01/2009 04/01/2009 04/08/2009 04/08/2009 04/09/2009 04/09/2009

(plh) (Entered: 03/25/2009)
159 Minute Entry for proceedings held before Judge Arthur J. Schwab: Status Conference held on 3/25/2009. (Court Reporter: Sandy Wenger) (eca) (Entered: 03/25/2009)
SCHEDULING ORDER. Responsive pleading to counterclaim due by 04/01/09. Response due by 4/8/2009. Signed by Judge Arthur J. Schwab on 03/25/09. 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: 03/26/2009)
SCHEDULING ORDER. Plaintiffs' counsel is to re−draft the Notice and re−file by NOON on 03/27/09. Objections thereto due by NOON on 04/01/09. Signed by Judge Arthur J. Schwab on 03/25/09. 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: 03/26/2009)
SCHEDULING ORDER. A Status Report as to the number of individuals who have opted in is due by NOON on 06/08/09. A Status Conference is set for 06/09/09 at 9:00 AM before Arthur J. Schwab. Signed by Judge Arthur J. Schwab on 03/25/09. 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: 03/26/2009)
SCHEDULING ORDER. Consented−to Case Management Order due by NOON on 06/08/09. If no consent, separate Proposed Orders due by NOON on 06/08/09. Signed by Judge Arthur J. Schwab on 03/25/09. 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: 03/26/2009)
160 Proposed Order re 145 Motion to Certify Class, Jointly Filed by PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL. (Attachments: # 1 Exhibit Notice, # 2 Exhibit Consent Form) (Fox, Bruce) (Entered: 03/27/2009)
161 ORDER granting 145 Motion for Conditional Class Certification and Court−Facilitated Notice. Signed by Judge Arthur J. Schwab on 03/31/09. (Attachments: # 1 Exhibit Notice, # 2 Exhibit Opt−In Consent Form) (eca) (Entered: 04/01/2009)
162 MOTION to Dismiss Defendant's Counterclaim re 157 Answer to Complaint, Counterclaim by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 04/01/2009)
163 BRIEF in Support re 162 Motion to Dismiss Defendant's Counterclaim filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 04/01/2009)
164 RESPONSE to Motion re 162 Motion to Dismiss Brief in Opposition to Plaintiff's Motion to Dismiss Defendant's Counterclaims filed by PPG INDUSTRIES, INC.. (Glunt, James) Modified on 4/9/2009. (plh) This document removed from public view and redocketed at Doc. # 165 . (Entered: 04/08/2009)
165 BRIEF in Opposition re 162 Motion to Dismiss filed by PPG INDUSTRIES, INC. (plh) (Entered: 04/09/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 164 Response to Motion. ERROR: Wrong event selected. CORRECTION: Re−docketed as Brief in Opposition. This message is for informational purposes only. (plh) (Entered: 04/09/2009)
166 MOTION for Leave to File Reply Brief in Support of Plaintiffs' Motion to Dismiss Defendant's Counterclaim by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit Reply Brief on Plaintiffs Motion to Dismiss Counterclaim, # 2 Proposed Order) (Fox, Bruce) (Entered: 04/09/2009)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 25 of 34

04/10/2009
04/10/2009
04/13/2009
04/27/2009
06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009

ORDER granting 166 Motion for Leave to File Reply Brief in Support of Plaintiff's Motion to Dismiss Defendant's Counterclaim, in excess of five pages in length. The reply brief shall be filed by 3:00 p.m. on April 20, 2009. Signed by Judge Arthur J. Schwab on 04/10/2009. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (tam) (Entered: 04/10/2009)
167 REPLY to Response to Motion re 163 Brief in Support of Motion, 162 Motion to Dismiss, 165 Brief in Opposition to Motion filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 04/10/2009)
168 ORDER denying 162 Motion to Dismiss in all respects WITHOUT PREJUDICE to plaintiff raising the issues set forth therein in a Motion for Summary Judgment at the appropriate time. Signed by Judge Arthur J. Schwab on 04/13/09. (eca) (Entered: 04/13/2009)
169 ANSWER to 157 Answer to Complaint, Counterclaim by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) Modified on 4/28/2009. (plh) (Entered: 04/27/2009)
170 CONSENT TO OPT IN as a class member by Thomas Adair Becer. (Fox, Bruce) (Entered: 06/01/2009)
171 CONSENT TO OPT IN as a class member by Leslie M. Beck. (Fox, Bruce) (Entered: 06/01/2009)
172 CONSENT TO OPT IN as a class member by Marianna Beveridge. (Fox, Bruce) (Entered: 06/01/2009)
173 CONSENT TO OPT IN as a class member by Celeste M. Bey. (Fox, Bruce) (Entered: 06/01/2009)
174 CONSENT TO OPT IN as a class member by William M. Bishop. (Fox, Bruce) (Entered: 06/01/2009)
175 CONSENT TO OPT IN as a class member by Wade Bittner. (Fox, Bruce) (Entered: 06/01/2009)
176 CONSENT TO OPT IN as a class member by Lorene C. Boettcher. (Fox, Bruce) (Entered: 06/01/2009)
177 CONSENT TO OPT IN as a class member by Richard Bradstreet. (Fox, Bruce) (Entered: 06/01/2009)
178 CONSENT TO OPT IN as a class member by Virgil C. Caserta. (Fox, Bruce) (Entered: 06/01/2009)
179 CONSENT TO OPT IN as a class member by Edward R. Coleridge, Sr.. (Fox, Bruce) (Entered: 06/01/2009)
180 CONSENT TO OPT IN as a class member by Daniel J. Conroy. (Fox, Bruce) (Entered: 06/01/2009)
181 CONSENT TO OPT IN as a class member by Raymond F. Cornuet, Jr.. (Fox, Bruce) (Entered: 06/01/2009)
182 CONSENT TO OPT IN as a class member by Bruce C. Crivaro. (Fox, Bruce) (Entered: 06/01/2009)
183 CONSENT TO OPT IN as a class member by Frank V. De Carlo. (Fox, Bruce) (Entered: 06/01/2009)
184 CONSENT TO OPT IN as a class member by Donaldson J. Emch. (Fox, Bruce) (Entered: 06/01/2009)
185 CONSENT TO OPT IN as a class member by Andrew C. Feldpausch. (Fox, Bruce) (Entered: 06/01/2009)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 26 of 34

06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009

186 CONSENT TO OPT IN as a class member by Christopher L. Fredrickson. (Fox, Bruce) (Entered: 06/01/2009)
187 CONSENT TO OPT IN as a class member by David H. Gang. (Fox, Bruce) (Entered: 06/01/2009)
188 CONSENT TO OPT IN as a class member by April G. Giel. (Fox, Bruce) (Entered: 06/01/2009)
189 CONSENT TO OPT IN as a class member by Gail E. Goodall. (Fox, Bruce) (Entered: 06/01/2009)
190 CONSENT TO OPT IN as a class member by Cindy Hinich. (Fox, Bruce) (Entered: 06/01/2009)
191 CONSENT TO OPT IN as a class member by Kenneth J. Hunt. (Fox, Bruce) (Entered: 06/01/2009)
192 CONSENT TO OPT IN as a class member by David F. Jeffrey. (Fox, Bruce) (Entered: 06/01/2009)
193 CONSENT TO OPT IN as a class member by Wilda M. Jones−Howe. (Fox, Bruce) (Entered: 06/01/2009)
194 CONSENT TO OPT IN as a class member by Tim Kerchenski. (Fox, Bruce) (Entered: 06/01/2009)
195 CONSENT TO OPT IN as a class member by Edward F. Kobe. (Fox, Bruce) (Entered: 06/01/2009)
196 CONSENT TO OPT IN as a class member by David E. Kubicek. (Fox, Bruce) (Entered: 06/01/2009)
197 CONSENT TO OPT IN as a class member by Laura L. Leslie. (Fox, Bruce) (Entered: 06/01/2009)
198 CONSENT TO OPT IN as a class member by Kevin Scott Lightsey. (Fox, Bruce) (Entered: 06/01/2009)
199 CONSENT TO OPT IN as a class member by Pamela M. Longo. (Fox, Bruce) (Entered: 06/01/2009)
200 CONSENT TO OPT IN as a class member by James L. Miles. (Fox, Bruce) (Entered: 06/01/2009)
201 CONSENT TO OPT IN as a class member by Matthew S. Miller, Sr.. (Fox, Bruce) (Entered: 06/01/2009)
202 CONSENT TO OPT IN as a class member by Richard M. Nugent, Jr.. (Fox, Bruce) (Entered: 06/01/2009)
203 CONSENT TO OPT IN as a class member by Susan L. Prodoehl. (Fox, Bruce) (Entered: 06/01/2009)
204 CONSENT TO OPT IN as a class member by J. A. Rakvic. (Fox, Bruce) (Entered: 06/01/2009)
205 CONSENT TO OPT IN as a class member by Monica L. Rupert. (Fox, Bruce) (Entered: 06/01/2009)
206 CONSENT TO OPT IN as a class member by Kathleen L. Sample. (Fox, Bruce) (Entered: 06/01/2009)
207 CONSENT TO OPT IN as a class member by Joseph C. Sawicki. (Fox, Bruce) (Entered: 06/01/2009)
208 CONSENT TO OPT IN as a class member by Gary R. Schmidt. (Fox, Bruce) (Entered: 06/01/2009)
209 CONSENT TO OPT IN as a class member by Debra A. Scott. (Fox, Bruce) (Entered: 06/01/2009)

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 27 of 34

06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/04/2009 06/04/2009 06/04/2009 06/04/2009 06/08/2009
06/08/2009
06/09/2009
06/09/2009

210 CONSENT TO OPT IN as a class member by Howard Sipe. (Fox, Bruce) (Entered: 06/01/2009)
211 CONSENT TO OPT IN as a class member by Chris Marvin Smith. (Fox, Bruce) (Entered: 06/01/2009)
212 CONSENT TO OPT IN as a class member by Elizabeth J. Smith. (Fox, Bruce) (Entered: 06/01/2009)
213 CONSENT TO OPT IN as a class member by Michael L. Sproule. (Fox, Bruce) (Entered: 06/01/2009)
214 CONSENT TO OPT IN as a class member by Raymond R. Stec. (Fox, Bruce) (Entered: 06/01/2009)
215 CONSENT TO OPT IN as a class member by Melvin Terrell. (Fox, Bruce) (Entered: 06/01/2009)
216 CONSENT TO OPT IN as a class member by Calvin Thornton. (Fox, Bruce) (Entered: 06/01/2009)
217 CONSENT TO OPT IN as a class member by Edward L. Vandevort, Jr.. (Fox, Bruce) (Entered: 06/01/2009)
218 CONSENT TO OPT IN as a class member by Shirley L. VanDyke. (Fox, Bruce) (Entered: 06/01/2009)
219 CONSENT TO OPT IN as a class member by Karl M. Wisniewski. (Fox, Bruce) (Entered: 06/01/2009)
220 CONSENT TO OPT IN as a class member by Roberta Ann Wojtysiak. (Fox, Bruce) (Entered: 06/01/2009)
221 CONSENT TO OPT IN as a class member by Warren R. Yaiser. (Fox, Bruce) (Entered: 06/01/2009)
222 CONSENT TO OPT IN as a class member by John Zern. (Fox, Bruce) (Entered: 06/01/2009)
223 CONSENT TO OPT IN as a class member by Edward P. Zilla. (Fox, Bruce) (Entered: 06/01/2009)
224 CONSENT TO OPT IN as a class member by Robert Curtis Burns. (Fox, Bruce) (Entered: 06/04/2009)
225 CONSENT TO OPT IN as a class member by Quinton Lawson. (Fox, Bruce) (Entered: 06/04/2009)
226 CONSENT TO OPT IN as a class member by Kevin Walters. (Fox, Bruce) (Entered: 06/04/2009)
227 CONSENT TO OPT IN as a class member by Richard Welesko. (Fox, Bruce) (Entered: 06/04/2009)
228 Proposed Case Management Order (Track II), Jointly Filed by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 06/08/2009)
229 STATUS REPORT on Number of Opt−In Plaintiffs by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 06/08/2009)
Minute Entry for proceedings held before Judge Arthur J. Schwab: Status Conference held on 6/9/2009. Case Management Order issued. Future mediation sessions discussed. Text−only entry. No PDF document will issue. (Court Reporter: Sandy Wenger) (eca) (Entered: 06/09/2009)
230 CASE MANAGEMENT ORDER: Exchange of required Rule 26(a)(1) information due by 6/29/2009. Discovery due by 12/9/2009. Plaintiffs Expert Reports due by 12/29/2009. Defendants Expert Reports due by 01/29/2010. Rebuttal Reports due

Case: 2:07-cv-705 As of: 07/13/2010 06:07 PM EDT 28 of 34

06/15/2009 06/24/2009
06/30/2009 06/30/2009 07/01/2009 07/02/2009 07/02/2009 07/02/2009
07/02/2009 07/06/2009 07/06/2009 07/06/2009

by 02/26/2010. Defendants Motion for Decertification due 03/31/2010. Response thereto due 04/30/2010. Summary Judgment due by 6/30/2010. Response to Summary Judgment due by 7/22/2010. Reply brief due by 8/4/2010. Signed by Judge Arthur J. Schwab on 06/09/09. (eca) (Entered: 06/09/2009)
ORDER. Defendant PPG Industries, Inc. shall have until 06/30/09 to file its amended counterclaims, and Plaintiffs shall have until 07/17/09 to Answer. Signed by Judge Arthur J. Schwab on 06/15/09. 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: 06/15/2009)
231 Notice of ADR proceeding: The litigants are advised that at the conclusion of the ADR process they must submit a completed questionnaire to the Clerk of Courts. The questionnaire is available on the Court's website at www.pawd.uscourts.gov and click on the ADR icon. Mediation Conference set for 9/15/2009 10:00 AM Mediation Conference set for 9/16/2009 10:00 AM (Kushner, Louis) (Entered: 06/24/2009)
232 MOTION to Compel Defendant to Attend E−Discovery Conference on or Before July 10, 2009 by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order, # 2 Discovery Dispute Certificate, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E) (Evans, Melissa) (Entered: 06/30/2009)
233 Second AMENDED COUNTERCLAIM Against All Plaintiffs Except Matthew S. Miller, Sr., filed by PPG INDUSTRIES, INC. (Attachments: # 1 Exhibit A (Part 1 of 4), # 2 Exhibit A (Part 2 of 4), # 3 Exhibit A (Part 3 of 4), # 4 Exhibit A (Part 4 of 4), # 5 Exhibit B) (Glunt, James) (Entered: 06/30/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 232 Motion to Compel. Response to Motion due by 7/6/2009 at 3:00 PM. Signed by Judge Arthur J. Schwab on 07/01/09. 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: 07/01/2009)
234 MOTION for Protective Order by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A (Affidavit of John Coyne), # 2 Discovery Dispute Certificate, # 3 Proposed Order) (Glunt, James) (Entered: 07/02/2009)
ORDER Response/Briefing Schedule re 234 Motion for Protective Order Response to Motion due by 7/6/2009 at 3:00 pm. Signed by Judge Arthur J. Schwab on 7/02/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (mjl) (Entered: 07/02/2009)
ORDER re 234 Motion for Protective Order filed by PPG INDUSTRIES, INC. The deposition of David Diehl, purportedly scheduled for July 6, 2009, is hereby postponed until Court rules on 234 motion for Protective Order and Motion to limit scope of discovery . Signed by Judge Arthur J. Schwab on 7/02/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (mjl) (Entered: 07/02/2009)
W/ 234 MOTION to Limit the Scope of Discovery by PPG INDUSTRIES, INC. (jv) (Entered: 07/06/2009)
235 BRIEF in Opposition re 232 Motion to Compel, Discovery Conference filed by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A − Letter to Bruce C. Fox, Esq.) (Glunt, James) (Entered: 07/06/2009)
236 BRIEF in Opposition re 234 Motion for Protective Order filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Evans, Melissa) Removed from public view at Court's direction. Modified on 7/6/2009. (jsp) (Entered: 07/06/2009)
237 Errata re 236 Brief in Opposition by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. Reason for Correction: Document Incorrectly Filed. (Fox, Bruce) Modified on 7/7/2009 to add document linkage. (ept) (Entered: 07/06/2009)

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07/06/2009
07/07/2009 07/07/2009 07/07/2009 07/07/2009 07/07/2009 07/07/2009 07/07/2009 07/08/2009 07/09/2009 07/10/2009 07/15/2009 07/15/2009
07/16/2009

238 MOTION for Leave to File Reply Regarding Plaintiffs' Expedited Motion to Compel Defendant to Attend E−Discovery Conference On or Before July 10, 2009 by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Reply Regarding Plaintiffs' Expedited Motion to Compel Defendant to Attend E−Discovery Conference On or Before July 10, 2009, # 2 Proposed Order) (Fox, Bruce) (Entered: 07/06/2009)
239 ORDER granting 238 Motion for Leave to File Reply Brief. Reply due by 7/7/2009 at NOON. Signed by Judge Arthur J. Schwab on 07/07/09. (eca) (Entered: 07/07/2009)
240 REPLY BRIEF by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT re 232 Motion to Compel, 235 Brief in Opposition to Motion filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Evans, Melissa) (Entered: 07/07/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 237 Errata. ERROR: Signature on document and filer do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the Errata using the errata event and linking the document to 237 . This message is for informational purposes only. (ept) (Entered: 07/07/2009)
241 Errata re 237 Errata by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. Reason for Correction: Filer and Signature to Match. (Evans, Melissa) (Entered: 07/07/2009)
242 ORDER denying 232 Motion to Compel Defendant to Attend E−Discovery Conference. Plaintiffs' Motion to Compel is DENIED since PPG has agreed to participate in a conference regarding electronic discovery protocols and procedures. Signed by Judge Arthur J. Schwab on 07/07/09. (eca) (Entered: 07/07/2009)
243 ORDER denying 234 Motion to Limit the Scope of Discovery and for Protective Order. Signed by Judge Arthur J. Schwab on 07/07/09. (eca) (Entered: 07/07/2009)
244 MOTION for Leave to Take Deposition of David Diehl by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 07/07/2009)
245 ORDER granting 244 Motion for Leave to Take Deposition of David Diehl. Signed by Judge Arthur J. Schwab on 07/08/09. (eca) (Entered: 07/08/2009)
246 Second MOTION to Compel E−Discovery Conference by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit, # 5 Exhibit, # 6 Proposed Order, # 7 Discovery Dispute Certificate) (Evans, Melissa) (Entered: 07/09/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 246 Motion to Compel. Response to Motion due by 7/15/2009. Signed by Judge Arthur J. Schwab on 07/10/09. 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: 07/10/2009)
247 RESPONSE to Motion re 246 Motion to Compel, filed by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A) (Glunt, James) (Entered: 07/15/2009)
248 MOTION for Leave to File Reply Regarding Plaintiffs' Second Expedited Motion to Compel E−Discovery Conference by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order, # 2 Reply Regarding Plaintiffs' Second Expedited Motion to Compel E−Discovery Conference, # 3 Exhibit A to Reply) (Fox, Bruce) (Entered: 07/15/2009)
249 ORDER granting 248 Motion for Leave to File Reply Brief in Support of Plaintiffs' Expedited Second Motion to Compel E−Discovery Conference. Reply Brief shall

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07/16/2009 07/17/2009 07/17/2009 07/17/2009
07/17/2009 07/20/2009 07/20/2009 07/24/2009
07/27/2009 07/31/2009 08/12/2009 08/20/2009 08/20/2009
09/01/2009 09/23/2009

be filed by 07/17/09. Signed by Judge Arthur J. Schwab on 07/16/09. (eca) (Entered: 07/16/2009)
250 REPLY to Response to Motion re 246 Motion to Compel, 247 Response to Motion filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit A) (Fox, Bruce) (Entered: 07/16/2009)
251 Proposed Order re 246 Motion to Compel, by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 07/17/2009)
252 Proposed Order re 246 Motion to Compel, (Alternative Relief) by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 07/17/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 251 Proposed Order, 252 Proposed Order. ERROR: Proposed Order filed as a separate document. CORRECTION: Proposed Order attached to appropriate Motion by Court. The incorrect submission will remain on the docket unless otherwise ordered by the Court. This message is for informational purposes only. (plh) (Entered: 07/17/2009)
253 ANSWER to Amended Counterclaim by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit 1) (Fox, Bruce) (Entered: 07/17/2009)
254 ORDER granting in part and denying in part 246 Motion to Compel E−Discovery Conference. Joint Status Report due 08/20/09. Signed by Judge Arthur J. Schwab on 07/20/09. (eca) (Entered: 07/20/2009)
Status Report due by 8/20/2009 (eca) (Entered: 07/20/2009)
255 MOTION for attorney William J. Leonard to Appear Pro Hac Vice, (Filing fee $40, Receipt # 03150000000001313645) by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Affidavit of William J. Leonard, # 2 Proposed Order) (Fox, Bruce) (Entered: 07/24/2009)
256 ORDER granting 255 Motion for William J. Leonard to Appear Pro Hac Vice. Attorney Leonard added. Signed by Judge Arthur J. Schwab on 07/27/09. (eca) (Entered: 07/27/2009)
257 NOTICE of Appearance by Erin J. McLaughlin on behalf of PPG INDUSTRIES, INC.. (McLaughlin, Erin) (Entered: 07/31/2009)
258 NOTICE of Appearance by Matthew H. Meade on behalf of PPG INDUSTRIES, INC.. (Meade, Matthew) (Entered: 08/12/2009)
259 STATUS REPORT on the Production of ESI by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Evans, Melissa) (Entered: 08/20/2009)
260 STATUS REPORT on ESI by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A − PPG's First Amended Proposal for Production of Oracle Data, # 2 Exhibit B − August 13, 2009 Letter of Bruce Fox, # 3 Exhibit C − Proposal for Production of ESI from Individual Custodians and Outlook Mailboxes, # 4 Exhibit D − Letter from Melissa Evans dated August 14, 2009, # 5 Exhibit E − Preliminary Recommended Guidelines, # 6 Exhibit F − August 13, 2009 Letter of Matthew Meade, # 7 Exhibit G − August 13, 2009 Letter of Terrence Murphy) (Passarello, Lisa) (Entered: 08/20/2009)
261 NOTICE of Appearance by David J. Porter on behalf of PPG INDUSTRIES, INC.. (Porter, David) (Entered: 09/01/2009)
262 MOTION to Compel Defendant's Responses to Plaintiffs' Phase III Discovery Requests by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order, # 2 Discovery Dispute Certificate, # 3 6/12/09 Plaintiffs Fifth Set of Discovery Requests, # 4 7/13/09 Defendants Responses to Plaintiffs Fifth Set of

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09/24/2009 09/28/2009 09/29/2009 09/29/2009 09/30/2009 10/01/2009
10/02/2009 10/02/2009 10/02/2009 10/02/2009 10/02/2009 10/05/2009

Discovery Requests, # 5 7/13/09 Letter Enclosing Defendants Responses to Plaintiffs Fifth Set of Discovery Requests, # 6 Plaintiffs Exhibit 5, # 7 Excerpts from Deposition of Gary Armbrust, # 8 Plaintiffs Exhibit 92, # 9 Deposition Excerpts of John Prazenica, # 10 8/13/09 Letter from Defendant, # 11 7/30/09 Letter from Defendant, # 12 6/9/09 Excerpt from Status Conference, # 13 Plaintiffs Exhibit 89, # 14 7/27/09 Letter from Defendant, # 15 7/29/09 Email from Plaintiffs, # 16 11/20/07 Defendant's Answer to Interrogatory No. 8, # 17 10/10/07 Defendant's Rule 26 Disclosures) (Fox, Bruce) (Entered: 09/23/2009)
ORDER Response/Briefing Schedule re 262 Motion to Compel, Response to Motion due by noon, 10/2/2009. Signed by Judge Arthur J. Schwab on 9/24/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (mjl) (Entered: 09/24/2009)
263 MOTION for Protective Order by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order, # 2 Discovery Dispute Certificate, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I) (Fox, Bruce) (Entered: 09/28/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 263 Motion for Protective Order. Response to Motion due by 10/2/2009 at NOON. Signed by Judge Arthur J. Schwab on 09/29/09. 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: 09/29/2009)
264 Final MOTION for Discovery Seeking Leave to Take More than Ten Depositions by PPG INDUSTRIES, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order, # 4 Discovery Dispute Certificate) (Glunt, James) (Entered: 09/29/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 264 Motion for Discovery. Response to Motion due by 10/5/2009 at NOON. Signed by Judge Arthur J. Schwab on 09/30/09. 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: 09/30/2009)
265 REPORT of Early Neutral Evaluation Case has not resolved. LOUIS KUSHNER terminated. The parties are reminded of their obligation to complete the ADR questionnaire and return same to the Clerk of Court within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. ENE session was held held on 9/16/2009. (Kushner, Louis) (Entered: 10/01/2009)
266 MOTION for Judgment on the Pleadings As to Count I of Amended Complaint (Doc. 13 ) by PPG INDUSTRIES, INC. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 10/02/2009)
267 BRIEF in Support re 266 Motion for Judgment on the Pleadings as to Count I of Amended Complaint (Doc. 13 ) filed by PPG INDUSTRIES, INC. (Glunt, James) (Entered: 10/02/2009)
268 BRIEF in Opposition re 263 Motion for Protective Order, filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 10/02/2009)
269 BRIEF in Opposition re 262 Motion to Compel, filed by PPG INDUSTRIES, INC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order) (Glunt, James) (Entered: 10/02/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 266 Motion for Judgment on the Pleadings. Response to Motion due by 10/12/2009. Replies due by 10/16/2009. Signed by Judge Arthur J. Schwab on 10/02/09. 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: 10/02/2009)
270 BRIEF in Opposition re 264 Motion for Discovery Opposition to Defendant's Motion for Leave to Take More Than Ten Depositions filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L.

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10/06/2009
10/06/2009 10/08/2009 10/08/2009 10/09/2009 10/09/2009 10/09/2009
10/12/2009 10/13/2009 10/14/2009
10/14/2009 10/14/2009 10/14/2009
10/15/2009

CAMPBELL, KENNETH J. HUNT. (Fox, Bruce) (Entered: 10/05/2009)
271 ORDER granting in part and denying in part 262 Motion to Compel Defendant's Responses to Plaintiffs' Phase III Discovery Requests. Revised proposal for protocol/procedure for e−discovery plan due 10/15/09. Cost estimates of each proposal due 10/18/09. Signed by Judge Arthur J. Schwab on 10/06/09. (eca) (Entered: 10/06/2009)
272 ORDER denying 263 Motion for Protective Order; granting 264 Motion for Leave to Take More Than Ten Depositions. Signed by Judge Arthur J. Schwab on 10/06/09. (eca) (Entered: 10/06/2009)
273 MOTION for Leave to File amicus brief in support of plaintiffs' opposition to defendant's motion for judgment on the pleadings. by AARP. (McCann, Laurie) (Entered: 10/08/2009)
274 RESPONSE to Motion re 273 Motion for Leave to File Amicus Curiae Brief filed by PPG INDUSTRIES, INC.. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 10/08/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 273 Motion for Leave to File. ERROR: Typed name omitted by s/. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit with signature, using Errata event. This message is for informational purposes only. (plh) (Entered: 10/09/2009)
276 MOTION for Leave to File Refiling Motion for Leave for signature requirement by AARP. (Attachments: # 1 Proposed Order) (McCann, Laurie) (Entered: 10/09/2009)
277 ORDER granting 273 Motion for Leave to File AMICUS BRIEF; granting 276 Motion for Leave to File AMICUS BRIEF. AARP shall file any amicus curiae brief opposing dismissal of Count I of the amended complaint on or before October 16, 2009. Defendant shall file any brief in response to AARP's brief on or before October 21, 2009. Signed by Judge Arthur J. Schwab on 10/09/09. (mjl) (Entered: 10/09/2009)
278 Opposition re 266 Motion for Judgment on the Pleadings filed by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Evans, Melissa) (Entered: 10/12/2009)
279 Joint MOTION to Extend Time to Comply With Court Order (Doc. 271 ) by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 10/13/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 276 Motion for Leave to File. ERROR: Typed name omitted by s/. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit with signature, using *ERRATA* event (Located under "Other Documents"). Attorney advised to link ERRATA event to 276 Motion for Leave to File This message is for informational purposes only. (jv) (Entered: 10/14/2009)
280 Errata re 276 Motion For Leave to File by AARP. Reason for Correction: No s/signature. (Attachments: # 1 Proposed Order) (McCann, Laurie) Modified on 10/19/2009. (tt) (Entered: 10/14/2009)
281 ORDER granting 279 Motion to Extend Time to Comply with Court Order 271 . Signed by Judge Arthur J. Schwab on 10−14−09. (ms) (Entered: 10/14/2009)
282 MOTION for attorney Laurie A. McCann to Appear Pro Hac Vice, (Filing fee $40, Receipt # 03150000000001398154) by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order, # 2 Affidavit of Laurie A. McCann, Esquire) (Fox, Bruce) (Entered: 10/14/2009)
283 ORDER granting 282 Motion for Laurie A. McCann to Appear Pro Hac Vice. Signed by Judge Arthur J. Schwab on 10/15/09. (eca) (Entered: 10/15/2009)

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10/15/2009 10/16/2009 10/16/2009 10/19/2009 10/21/2009 10/23/2009 10/23/2009 10/26/2009 10/26/2009 10/28/2009 10/28/2009 11/03/2009 11/04/2009
11/04/2009
11/05/2009
11/05/2009

286 BRIEF AMICUS CURIAE in Support of 270 Brief in Opposition to Motion filed by AARP. (plh) (Entered: 10/19/2009)
284 Amicus Curiae APPEARANCE entered by Laurie A. McCann on behalf of AARP. (McCann, Laurie) Modified on 10/19/2009. (plh) This document removed from public view and redocketed at Doc. # 286 . (Entered: 10/16/2009)
285 REPLY to Response to Motion re 278 Brief in Opposition to Motion for Judgment on the Pleadings filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 10/16/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 284 Amicus Curiae Appearance. ERROR: Wrong event selected. CORRECTION: Re−docketed as Brief in Support. This message is for informational purposes only. (plh) (Entered: 10/19/2009)
287 REPLY BRIEF by PPG INDUSTRIES, INC. re 286 Brief in Support − Other of Plaintiffs' Opposition to Defendant's Motion for Judgment on the Pleadings filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 10/21/2009)
288 STATUS REPORT on Plaintiffs' Revised Proposal for ESI Protocol/Procedure by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit) (Fox, Bruce) (Entered: 10/23/2009)
289 MOTION for an Order Implementing Defendant's E−Discovery Plan by PPG INDUSTRIES, INC. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Glunt, James) (Entered: 10/23/2009)
290 STATUS REPORT RE: ESI PROCESSING COST ESTIMATE by ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL. (Attachments: # 1 Exhibit Phase 1 Search terms, # 2 Exhibit Phase 2 Search Terms, # 3 Exhibit Withdrawn Search Terms) (Fox, Bruce) (Entered: 10/26/2009)
291 NOTICE of Defendant's Cost Estimates of E−Discovery Plans by PPG INDUSTRIES, INC. (Glunt, James) (Entered: 10/26/2009)
292 MEMORANDUM ORDER denying 266 Motion for Judgment on the Pleadings. Signed by Judge Arthur J. Schwab on 10/28/09. (mjl) (Entered: 10/28/2009)
293 ORDER granting 289 Motion for an Order Implementing Defendant's E−Discovery Plan. Signed by Judge Arthur J. Schwab on 10/28/09. (eca) (Entered: 10/28/2009)
294 MOTION for Clarification as to 293 Order on Motion Implementing Deft's E−Discovery Plan Related to ESI Protocol by WADE C. BITTNER, ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 11/03/2009)
ORDER SETTING DEADLINE FOR RESPONSE to 294 Motion for Clarification. Response to Motion due by 11/10/2009. Signed by Judge Arthur J. Schwab on 11/04/09. 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: 11/04/2009)
295 Joint MOTION for Extension of Time to Complete Discovery by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Glunt, James) Modified on 11/5/2009. (plh) (Entered: 11/04/2009)
ORDER granting 295 Motion for Extension of Time to Complete Discovery. The appropriate Amended Case Management Order will follow. Signed by Judge Arthur J. Schwab on 11/05/09. 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: 11/05/2009)
296 AMENDED CASE MANAGEMENT ORDER: Discovery due by 4/15/2010. Plaintiffs Expert Reports due by 5/5/2010. Defendants Expert Reports due by 6/7/2010. Expert Depositions to be completed by 7/9/2010. Signed by Judge Arthur

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11/10/2009 11/11/2009
11/12/2009
11/12/2009 11/12/2009 11/19/2009
11/19/2009
11/20/2009 11/20/2009 11/30/2009

J. Schwab on 11/05/09. (eca) (Entered: 11/05/2009)
297 RESPONSE to Motion re 294 Motion for Clarification, filed by PPG INDUSTRIES, INC.. (Glunt, James) (Entered: 11/10/2009)
298 Joint MOTION for Status Conference by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Proposed Order) (Glunt, James) (Entered: 11/11/2009)
ORDER denying 294 Motion for Clarification. Signed by Judge Arthur J. Schwab on 11/12/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (mjl) (Entered: 11/12/2009)
299 ORDER granting 298 Joint Motion for a Status Conference. Status Conference is scheduled for 11/20/09 at 9:30 AM in Courtroom 7C. Signed by Judge Arthur J. Schwab on 11/12/09. (ms) (Entered: 11/12/2009)
Set/Reset Hearings: Status Conference set for 11/20/2009 09:30 AM before Arthur J. Schwab. (eca) (Entered: 11/12/2009)
300 Joint MOTION For Order Regarding Settlement by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Attachments: # 1 Exhibit A (Sample Consent to Settle), # 2 Proposed Order) (Glunt, James) (Entered: 11/19/2009)
301 BRIEF in Support re 300 Motion for Order regarding Settlement, filed by WADE C. BITTNER, PPG INDUSTRIES, INC., ARTHUR C. RUPERT, LINDA K. AUSTIN, LARRY L. CAMPBELL, KENNETH J. HUNT. (Glunt, James) (Entered: 11/19/2009)
302 ORDER granting 300 Motion to Approve Settlement. Signed by Judge Arthur J. Schwab on 11/20/09. (mjl) (Entered: 11/20/2009)
303 Minute Entry for proceedings held before Judge Arthur J. Schwab: Settlement Conference held on 11/20/2009. (Court Reporter: Shirley Hall) (mjl) (Entered: 11/20/2009)
304 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11.20.09 before Judge Arthur J. Schwab. Court Reporter Shirley Hall, Telephone number 412−765−0408. The parties have five (5) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 12/7/2009. Redaction Request due 12/21/2009. Redacted Transcript Deadline set for 12/31/2009. Release of Transcript Restriction set for 3/1/2010. (sah, ) (Entered: 11/30/2009)

 
 Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

2009 WL 579234 Only the Westlaw citation is currently available.
United States District Court, W.D. Pennsylvania.
Arthur C. RUPERT, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner, individually and on behalf of all others similarly
situated, Plaintiffs, v.
PPG INDUSTRIES, INC., Defendant.
Civil Action No. 07–705. | Feb. 11, 2009.
Attorneys and Law Firms
Bruce C. Fox, Colin W. Murray, Melissa L. Evans, Rudy A. Fabian, Obermayer Rebmann Maxwell & Hippel LLP, Charles A. Lamberton, Lamberton Law Firm, Pittsburgh, PA, for Plaintiffs.
Jaime S. Tuite, James F. Glunt, Terrence H. Murphy,Lisa M. Passarello, Buchanan Ingersoll & Rooney, Pittsburgh, PA, for Defendant.
Opinion
REPORT AND RECOMMENDATION
KEVIN P. LUCAS, Special Master.
I. Recommendation *1 It is recommended that Defendant’s Motion for Judgment on the Pleadings Limiting the Temporal Scope of Plaintiffs’ Claims (Docket No. 73) be denied.
II. Report Plaintiffs Arthur C. Rupert, Linda K. Austin, Larry L. Campbell, Kenneth J. Hunt and Wade C. Bittner bring this action in which they allege that the termination of their employment by Defendant PPG Industries, Inc. (“Defendant”) violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621–634

(“ADEA”).1 Plaintiffs allege claims of both disparate treatment and disparate impact. Plaintiffs bring these claims both as individuals and as class representatives on behalf of others similarly situated.

1

By Report and Recommendation dated February 5,

2009, this Special Master recommended that summary

judgment be granted in favor of the Defendant and

against Plaintiffs Hunt and Bittner on the basis that

Plaintiffs Hunt and Bittner failed to exhaust their

administrative remedies.

Presently pending for disposition is Defendant’s Motion for Judgment on the Pleadings Limiting the Temporal Scope of Plaintiffs’ Claims, in which it seeks to limit the scope of claims by either named or potential opt-in plaintiffs to claims accruing no earlier than 300 days before October 25, 2006 (i.e., December 31, 2005), the date the first named plaintiff (Plaintiff Rupert) filed a charge with the EEOC. For the reasons that follow, it is recommended that Defendant’s Motion for Judgment on the Pleadings be denied.
Defendant acknowledges that under the single filing rule, a plaintiff who has not filed an EEOC charge within the limitations period can join a class action without satisfying the exhaustion and filing requirements if the EEOC charge filed by the plaintiff who filed the class action alleged class-based discrimination. See, e .g., Communications Workers v. New Jersey Dep’t of Personnel, 282 F.3d 213, 217 (3d Cir.2002). It further acknowledges that the 300–day charge-filing period is not jurisdictional, but rather is subject to equitable tolling. See Zipes v. Trans World Airlines, Inc. Independent Fed. of Flight Attendants, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Defendant asserts, however, that plaintiffs opting into a class action relying on the single filing rule are not entitled to the benefits of equitable tolling.
In support, Defendant points to Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir.2001). Hipp states that “the rearward scope of an ADEA opt-in action should be limited to those plaintiffs who allege discriminatory treatment within 180 or 300 days before the representative charge is filed.” Hipp, 252 F.3d at 1220. Significantly, however, Hipp did not have occasion to consider the doctrine of equitable tolling. The claims of the opt-in plaintiff in Hipp were already time-barred when the
1

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

representative charge was filed with the EEOC. Indeed, the court expressly stated that the opt-in plaintiff ‘ “could not have filed a timely charge’ on the date [the representative plaintiff] filed his charge.” Id. at 1220 n. 9. This fact was critical to the court’s holding the single-filing rule could not revive the untimely claims of the opt-in plaintiff. The court explained that a rule allowing a plaintiff to piggyback on a representative charge filed after his own claim was time-barred would “virtually eliminate the statute of limitations for opt-in plaintiffs in ADEA actions.” Id. at 1220.
*2 As support for its decision, Hipp cited cases from other jurisdictions, the vast majority of which Hipp described as holding that “the single-filing rule is properly applied only to those individuals who could have filed timely EEOC charges at the time [the representative plaintiff] actually filed his charge.” Id. at 1221 (quoting Theissen v. General Elec. Capital Corp., 996 F.Supp. 1071, 1076–77 (D.Kan.1998) and citing Brooks v. Bellsouth Telecomm., Inc., 164 F.R.D. 561, 570 (N.D.Ala.1995); Church v. Consol. Freightways, Inc., 137 F.R.D. 294, 309 (N.D.Cal.1991); Levine v. Lane Bryant, 700 F.Supp. 949, 957 (N.D.Ill.1988); Walker v. Mountain States Tel. & Tel. Co., 112 F.R.D. 44, 47 (D.Colo.1986)). Theissen, one of the cases cited by Hipp, appears to have recognized that equitable tolling would apply in the context of the single filing rule, but rejects application of equitable tolling to the claims before it on the ground that there was not evidence of record that could support equitable tolling. Theissen, 996 F.Supp. at 1078.
Where an individual (if any were to exist under the particular circumstances) is entitled to equitable tolling, his or her claim may not have been time-barred at the time the representative charge was filed notwithstanding the fact that it accrued more than 300 days prior to the filing of that charge.2 Allowing such an individual the benefit of the single filing rule would not eliminate or even expand the statute of limitations for opt-in plaintiffs.

2

The fact that Plaintiffs Hunt and Bittner have not

adduced evidence to support equitable tolling of their

individual claims does not preclude the possibility that

a potential future opt-in plaintiff may do so. The

determination in the prior February 5, 2009 Report and

Recommendation that equitable tolling did not apply to

Plaintiffs Hunt and Bittner’s claims was based upon the

information contained in the decisional unit disclosures

that Hunt and Bittner received. Not all persons

terminated by Defendant received the same

informational disclosures.

As both Hipp and the Defendant recognize, the purpose of the single filing rule is to avoid the necessity for filing duplicative charges that serve no purpose where the claims have already been asserted in a timely representative charge. See id. at 1225 (“The objective of the piggybacking rule is to allow non-filing plaintiffs to rely on the charges of filing plaintiffs when it would be a “useless act” for the non-filing plaintiffs to file their own charges.”); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1223 (5th Cir.1995) (“The policy behind the single filing rule is that “[i]t would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC”), overruled on other grounds by Desert Palace v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). This purpose would not be served by requiring an individual with a claim that is viable on the date the representative charge is filed to file his own duplicative charge merely because his or her claim is subject to equitable tolling.
Defendant argues that equitable tolling tolls or stops the running of the statute of limitations but does not affect when a claim accrues and the statute begins to run. This is true insofar as it goes, but the critical inquiry for purpose of the single filing rule is not when the claim accrues, or when the limitations period begins to run, but rather whether it has expired at the time the representative charge is filed. Moreover, there is no merit to Defendant’s argument that “[s]ince opt-in plaintiffs ... by definition are not EEOC-charge filers, no limitations period is running with respect to them.” As Defendant itself argues in virtually the same breath, the limitations period begins to run for all plaintiffs, whether opt-in or not, and whether charge-filers or not, when their claim accrues. Whether and when the limitations period is running is not determined by whether a person has filed a charge with the EEOC. If an individual who subsequently opts in to a class action had a viable claim on the date the representative charge was filed due to equitable tolling, no purpose would be served by a rule preventing that person from choosing to piggyback on the representative charge and instead forcing that person to file his or her own duplicative charge.
*3 Accordingly, Defendant’s motion for a judgment on the pleadings limiting this action to claims accruing no earlier than December 31, 2005, must be denied, where potential future opt-in plaintiffs, if any, whose claims accrued prior to December 31, 2005 but were still viable
2

Rupert v. PPG Industries, Inc., Not Reported in F.Supp.2d (2009)

on October 25, 2006 due to equitable tolling, are entitled to rely on the single filing rule. While some temporal limitations on the scope of the class no doubt flow from the requirement that opt-in plaintiffs be similarly situated, this issue has not been raised and would not be appropriate for resolution on a motion for judgment on the pleadings.3

3

Similarly, it is noted that other courts have held that in

order to take advantage of the single filing rule, a

piggybacking plaintiffs claims must arise out of similar

discriminatory treatment “in the same time frame.”

Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1217

(11th Cir.2001). Whether this is the law in this circuit,

and, if so, the appropriate scope of that “time frame”

are issues not raised by Defendant’s motion.

It is unnecessary to decide Plaintiffs’ alternative argument that opt-in plaintiffs discharged prior to December 31, 2005 and alleging a pattern and practice claim would be entitled to participate in this class action on a continuing violation theory. On the pleadings, it is unclear exactly what practice it is that Plaintiffs assert constitutes the alleged discriminatory pattern and practice. While Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (May 29, 2007) raises serious questions about the viability of the

continuing violation theory outside the harassment context, the question of its applicability to pattern and practice claims and to the particular pattern and practice claim in this case (concerning which there are only general allegations in the First Amended Complaint) are matters best addressed not by motion for judgment on the pleadings but instead in the context of a factual record with the benefit of full briefing addressing the applicability of both Ledbetter and the earlier decision of Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986). Given that the parties have already had the opportunity by agreement to conduct discovery going back as far as May 2003 (see Stipulated Discovery Order, Docket No. 54), it is suggested that the parties raise this issue on a motion for summary judgment at the beginning of Phase II.
III. Conclusion For the reasons stated above, it is recommended that Defendant’s Motion for Judgment on the Pleadings Limiting the Temporal Scope of Plaintiffs’ Claims (Docket No. 73) be denied.
	  

3

 
 Case: 2:08-cv-616 As of: 07/12/2013 05:25 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: rfabian@lampllaw.com 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: 07/12/2013 05:25 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: 07/12/2013 05:25 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)

Case: 2:08-cv-616 As of: 07/12/2013 05:25 PM EDT 4 of 4

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)