pro hac vice€¦ · · 2017-01-09v. GOOGLE INC., a Delaware corporation, Defendant. Case No. 5:15-cv-01824-BLF DEFENDANT GOOGLE INC.’S OPPOSITION TO PLAINTIFF CHERYL FILLEKES’

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28Case No. 5:15-cv-01824-BLF

DEFENDANT GOOGLE INC.’S OPPOSITION TO PLAINTIFF CHERYL FILLEKES’ MOTION FORCONDITIONAL CERTIFICATION OF A COLLECTIVE ACTION (EFC 75) AND PLAINTIFF ROBERT

HEATH’S PARTIAL JOINDER (ECF 78)

Thomas M. McInerney, CA Bar No. [email protected] D. Berry, CA Bar No. [email protected], DEAKINS, NASH, SMOAK & STEWART, P.C.Steuart Tower, Suite 1300One Market PlazaSan Francisco, CA 94105Telephone: 415.442.4810Facsimile: 415.442.4870

A. Craig Cleland, pro hac [email protected], DEAKINS, NASH, SMOAK & STEWART, P.C.191 Peachtree St., NE., Ste. 4800Atlanta, GA 30303Telephone: 404.881.1300Facsimile: 404.870.1732

Attorneys for DefendantGOOGLE INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ROBERT HEATH, andCHERYL FILLEKES,

Plaintiffs, on behalf of themselvesand others similarly situated,

v.

GOOGLE INC., a Delaware corporation,

Defendant.

Case No. 5:15-cv-01824-BLF

DEFENDANT GOOGLE INC.’SOPPOSITION TO PLAINTIFF CHERYLFILLEKES’ MOTION FOR CONDITIONALCERTIFICATION OF COLLECTIVEACTION (ECF 75) AND PLAINTIFFROBERT HEATH’S PARTIAL JOINDER(ECF 78)

Date: September 22, 2016Time: 9:00 a.m.Dept.: Courtroom 3Judge: Hon. Beth Labson Freeman

Complaint Filed: April 22, 2015Trial Date: June 5, 2017

Case 5:15-cv-01824-BLF Document 96 Filed 07/29/16 Page 1 of 36

ii Case No. 5:15-cv-01824-BLFDEFENDANT GOOGLE INC.’S OPPOSITION TO PLAINTIFF CHERYL FILLEKES’ MOTION FOR

CONDITIONAL CERTIFICATION OF A COLLECTIVE ACTION (EFC 75) AND PLAINTIFF ROBERTHEATH’S PARTIAL JOINDER (ECF 78)

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TABLE OF CONTENTS

I. INTRODUCTION...............................................................................................................1

II. FACTUAL BACKGROUND .............................................................................................2

A. Google Does Not Collect Birth Dates or Ages from Its Over One MillionApplications for the Positions Included in the Proposed Classes. ..........................2

B. Google’s Anti-Discrimination Policy and ERGs ....................................................3

C. Google’s Hiring Process for SWEs, SREs, and SysEngs........................................4

III. APPLICABLE STANDARD..............................................................................................5

IV. ARGUMENT & AUTHORITIES.......................................................................................8

A. Plaintiffs’ Insubstantial Allegations Do Not Show A “Single Decision,Policy, or Plan” Infected By Intentional Age Discrimination.................................8

B. Heath’s Speculative, Idiosyncratic Allegations Do Not Merit a MassiveNotice Campaign to Stir-Up Litigation. ..................................................................9

C. Google’s Individualized, Decentralized Decision-Making RequiresTestimony from Myriad Witnesses to Resolve Only Plaintiffs’ andDeclarants’ Claims. ...............................................................................................11

D. The Alleged Remarks by Google’s In-Person Interviewers Are theAntithesis of Common Evidence...........................................................................14

E. Plaintiffs and Putative Opt-Ins Are Not Similarly Situated With Respectto their Qualifications, Rendering Joinder of Opt-Ins Inappropriate. ...................16

F. Fillekes’ “Evidence” that Google Allegedly Used Initial Interviews toDetermine Applicants’ Ages Is Contradicted by the Facts and Fails toShow Common Proof. ...........................................................................................17

G. Plaintiffs’ Reliance on Their Statistical “Evidence” Is Misplaced........................19

H. The Reid Case and the EEOC Charges Do Not Support ConditionalCertification...........................................................................................................22

I. Courts Repeatedly Refuse to Conditionally Certify ADEA CollectiveActions Where Plaintiffs’ Allegations and Evidence Show No UnifyingScheme of Age Discrimination. ............................................................................24

V. GOOGLE’S OBJECTIONS TO PLAINTIFFS’ PROPOSED PRODUCTIONOF PUTATIVE OPT-INS’ CONTACT INFORMATION AND PROPOSEDNOTICE ............................................................................................................................28


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VI. GOOGLE’S OBJECTIONS TO PLAINTIFFS’ EVIDENCE ..........................................28

A. Plaintiffs’ Allegations and Statements in their Declarations ContainSpeculative and Conclusory Testimony Not Based On PersonalKnowledge.............................................................................................................28

B. Plaintiffs’ Statistical “Evidence” Regarding Google’s Workforce Is NotProbative and Has Not Been Authenticated ..........................................................29

C. Plaintiffs’ Evidence from the Reid Case and Other EEOC Charges IsIrrelevant, Inadmissible Hearsay, and More Prejudicial than Probative...............29

D. The FAC Is Not Verified and Its Allegations Made On Information andBelief Are Inadmissible.........................................................................................29

VII. CONCLUSION .................................................................................................................30


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TABLE OF AUTHORITIES

Page(s)

CASES

Adair v. Wisconsin Bell, Inc.,No. 08-C-280, 2008 WL 4224360 (E.D. Wisc. Sep. 11, 2008) ..................................................26

Bean v. Crocker Nat’l Bank,600 F.2d 754 (9th Cir. 1979) .........................................................................................................6

Brooks v. BellSouth Telcoms, Inc.,164 F.R.D. 561 (N.D. Ala. 1995) ..........................................................................................10, 25

Castle v. Wells Fargo Fin., Inc.,No. C 06-4347SI, 2008 WL 495705 (N.D. Cal. Feb. 20, 2008) .................................................26

Cruz v. Bristol-Myers Squibb Co., PR Inc.,699 F.3d 563 (1st Cir. 2012) ..................................................................................................6, 30

Earl v. Nielsen Media Research,658 F.3d 1108 (9th Cir. 2011) .......................................................................................................7

Gallender v. Empire Fire & Marine Ins. Co.,No. CIV.A.505CV220DCBJMR, 2007 WL 325792 (S.D. Miss. Jan. 31, 2007)......14, 15, 24, 25

General Tel. Co. v. Falcon,457 U.S. 147 (1982) ....................................................................................................................23

Genesis Healthcare Corp. v. Symczyk,133 S. Ct. 1523 (2013) ................................................................................................................23

Gross v. FBL Fin. Servs., Inc.,557 U.S. 167 (2009) ..........................................................................................................7, 15, 16

Hazelwood School Dist. v. U.S.,433 U.S. 299 (1977) ....................................................................................................................21

Hazen Paper Co. v. Biggins,507 U.S. 603 (1993) ....................................................................................................................19

Hoffmann-La Roche Inc. v. Sperling,493 U.S. 165 (1989) ............................................................................................................ passim

Kellgren v. Petco Animal Supplies, Inc.,No. 13CV644 L KSC, 2015 WL 5167144 (S.D. Cal. Sept. 3, 2015)......................................7, 15

Lawrence v. Town of Irondequoit,246 F. Supp. 2d 150 (W.D.N.Y. 2002)........................................................................................25


v Case No. 5:15-cv-01824-BLFDEFENDANT GOOGLE INC.’S OPPOSITION TO PLAINTIFF CHERYL FILLEKES’ MOTION FOR


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Leuthold v. Destination Am., Inc.,224 F.R.D. 462 (N.D. Cal. 2004) ..................................................................................................5

Merrick v. Farmers Ins. Grp.,892 F.2d 1434 (9th Cir. 1990) ...................................................................................14, 15, 19, 24

O’Connor v. Consol. Coin Caterers Corp.,517 U.S. 308 (1996) ......................................................................................................................7

Pagliolo v. Guidant Corp.,No. CIV. 06-943DWFSRN, 2007 WL 2892400 (D. Minn. Sept. 28, 2007)...............................27

Pfohl v. Farmers Ins. Grp.,No. CV03-3080 DT (RCX), 2004 WL 554834 (C.D. Cal. Mar. 1, 2004) ..............................6, 26

Pines v. State Farm Gen. Ins. Co.,No. SACV89-631AHS(RWRX),1992 WL 92398 (C.D. Cal. Feb. 25, 1992).............................27

Roberts v. Target Corp.,No. CIV-11-0951-HE, 2013 WL 5256867 (W.D. Okla. Sept. 17, 2013)..........................6, 14, 25

Romero v. Producers Dairy Foods, Inc.,235 F.R.D. 474 (E.D. Cal. 2006)...................................................................................................5

Rose v. Wells Fargo & Co.,902 F.2d 1417 (9th Cir. 1990) ...............................................................................................14, 15

Scheitlin v. Freescale Semiconductor, Inc.,465 Fed. App’x 698 (9th Cir. 2012) .................................................................................... passim

Senne v. Kansas City Royals Baseball Corp.,No. 14-CV-00608-JCS, 2015 WL 6152476 (N.D. Cal. Oct. 20, 2015) ........................................6

Shushan v. Univ. of Colo.,132 F.R.D. 263 (D. Colo. 1990) ....................................................................................................6

Sperling v. Hoffman-LaRoche, Inc.,118 F.R.D. 392 (D. N.J. 1988) ......................................................................................................8

Teamsters v. U.S.,431 U.S. 324 (1977) ....................................................................................................................21

Thiessen v. Gen. Elec. Capital Corp.,267 F.3d 1095 (10th Cir. 2001) ...................................................................................................27

Trinh v. JP Morgan Chase & Co.,No. 07-CV-1666 W (WMC), 2008 WL 1860161 (S.D. Cal. Apr. 22, 2008)...................... passim

Velasquez v. HSBC Fin. Corp.,266 F.R.D. 424 (N.D. Cal. 2010) ........................................................................................6, 8, 26


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Wal-Mart, Inc. v. Dukes,131 S. Ct. 2541 (2011) ................................................................................................................23

Williams v. Sprint/United Mgmt. Co.,222 F.R.D. 483 (D. Kan. 2004) ...................................................................................................27

STATUTES

29 U.S.C. § 216(b)...................................................................................................................5, 23, 26

29 U.S.C. § 621, et seq .............................................................................................................. passim

RULES

Fed. R. Evid. 401.........................................................................................................................29, 30

Fed. R. Evid. 403...............................................................................................................................29

Fed. R. Evid. 602.........................................................................................................................28, 30

Fed. R. Evid. 801...............................................................................................................................29

Fed. R. Evid. 901...............................................................................................................................29

Fed. R. Civ. Proc. 12(b)(6) ..................................................................................................................5

Fed. R. Civ. Proc. 23 ...............................................................................................................6, 22, 23

OTHER AUTHORITIES

http://www.bls.gov/news.release/tenure.t01.htm (Jan. 2014) ...........................................................20

http://www.bls.gov/opub/mlr/2005/02/art5full.pdf (Feb. 10, 2016) .................................................20


1 Case No. 5:15-cv-01824-BLFDEFENDANT GOOGLE INC.’S OPPOSITION TO PLAINTIFF CHERYL FILLEKES’ MOTION FOR


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I. INTRODUCTION

To get their putative age-discrimination collective action conditionally certified, Plaintiffs

Fillekes and Heath must provide “substantial allegations” that they and the putative opt-ins were

together the “victims of a single decision, policy, or plan” that is “infected by intentional age

discrimination.” It is not enough to show that they and others may have their own age-

discrimination claims. Instead, they must show there is some glue tying all their claims together

such that joining them in the same action and trying them together is manageable and does not

create a judicial quagmire of many highly individualized claims requiring multiple and different

determinations by the factfinder for each claimant. Plaintiffs fail to meet this burden.

Heath offers no common proof, and Fillekes’ only attempt is her theory that Google

somehow uses in-person interviews first to learn the age of applicants in order to screen out older

applicants later. This specious conjecture is refuted by Fillekes’ own admission that after she was

first interviewed in-person at Google’s Mountain View headquarters—when she was already over

age 40—Google repeatedly recruited and interviewed her in-person for positions for many years to

come. Likewise, for the seven declarants, who interviewed for different positions (some not even

at issue here), Google repeatedly recruited and interviewed some of these declarants, too—long

after it could have learned that they were age 40 or older through in-person interviews. Fillekes’

theory is speculation, not common proof.

Still other facts show that nothing is gained from joining in a collective action such

individualized claims like those here. For one thing, for Fillekes and the seven declarants alone,

there are some different Google decision-makers (some onsite interviewers and Hiring

Committee members) who evaluated them over a five-year period. The factfinder would have to

hear the testimony of each decisionmaker about not only Fillekes’ and each declarants’

qualifications (based on highly technical interviews) but also the qualifications of those persons

who were actually hired, to determine if age discrimination or some other reason was the but-for

cause of not getting hired. For another thing, the factfinder would have to hear testimony from

individual decisionmakers about individualized remarks they allegedly made about individual

candidates, which Fillekes and the declarants suggest shows intentional age discrimination (for




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example, that they were not “Googley” enough or were not “fit” for the Google “lifestyle”)—to

decide if these comments are evidence of age discrimination or benign. Indeed, here the

factfinder’s determinations would be myriad because some Google interviewers repeatedly said

that Fillekes and the declarants were “Googley” enough for the job and would be a good fit with

Google’s culture—if only they had demonstrated the technical aptitude required for the job. This is

not common proof either, just more claimant-by-claimant facts to sort out.

If all this does not defeat conditional certification, a close examination of Fillekes’ and

Heath’s discriminatory hiring allegations should. These are so idiosyncratic and distinct that the

Court would have no choice but to sever even their claims for trial. In a last ditch effort, Fillekes

tosses in irrelevant EEOC charges, an irrelevant single-plaintiff lawsuit by a Google executive, and

inadmissible “statistical evidence”—none of which shows a single decision, policy, or plan. At the

end of the day, the Court is left with Fillekes, Heath, and the declarants—each of whom has highly

individualized facts and allegations that a factfinder would have to ferret out to resolve whether

each was the victim of intentional age discrimination. Setting aside the merits, there is no glue

binding even these claims together, much less those of any putative opt-ins. For sound case

management, to protect Google from a frivolous expedition conducted at its own expense, and to

avoid stirring up litigation through unwarranted notice, the Court must decide whether a

manageable collective action exists here. Respectfully, one does not.

II. FACTUAL BACKGROUND

A. Google Does Not Collect Birth Dates or Ages from Its Over One MillionApplications for the Positions Included in the Proposed Classes.

Plaintiffs’ proposed classes are potentially massive. To give a sense of scale, since the

beginning of the proposed class period on August 13, 2010, Google has received over one million

applications for Software Engineer (“SWE”), Site Reliability Engineer (“SRE”) and Systems

Engineer (“SysEng”) positions combined in the United States. Ong Decl. ¶ 13. These figures

include all applicants regardless of age, as they must, because there is no systematic or reliable way

of identifying applicants who were 40 or more years of age when they submitted applications or

interviewed in-person since Google does not collect data on the age or birthdate of its applicants.




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Ong Decl. ¶ 12.

B. Google’s Anti-Discrimination Policy and ERGs

Here, the only “policy” of any kind that is in evidence is Google’s announced policy

prohibiting employment discrimination. In April 2012, at or near the time Plaintiffs applied to

Google, Google’s then-Equal Employment Opportunity Policy—and as now—rigorously forbids

discrimination of any kind—including age discrimination—and requires that all employment-

related decisions be based not on any unlawful basis but on each individual’s merit, qualifications,

and professional competence:

Employment [at Google] is based solely upon individual merit and qualifications directlyrelated to professional competence. We strictly prohibit unlawful discrimination orharassment of any kind, including discrimination or harassment on the basis of race, color,religion, veteran status, national origin, ancestry, pregnancy status, sex, gender identity orexpression, age, marital status, mental or physical disability, medical condition, sexualorientation or any other characteristics protected by law. We also make all reasonableaccommodations to meet our obligations under laws protecting the rights of the disabled.

Declaration of Kara Silverstein (“Silverstein Decl.”) ¶ 3, Ex. 1 (emphasis added). Google’s Equal

Opportunity Policy also appears in Google’s August 2015 “Legal and Ethical Guidelines” for

interviewing. Silverstein Decl. ¶ 4. Among other things, these Guidelines state that Google is

“proud to be an equal opportunity employer and an employer of choice for diverse talent” and

“does not discriminate against any employee or applicant for employment” for any reason

prohibited by law. Id. (emphasis added). They also instruct Google team members who are

conducting interviews never to “ask about or discuss a candidate’s covered status [such as age] in

the interview, hiring discussions or interview feedback.” Id. And the Guidelines provide examples

of questions that should not be asked of applicants such as “What date did you finish high school?”

and “How would you feel about working for someone half your age?” Id.

Fillekes casts aspersions on Google’s Employee Resource Groups (“ERGs”) and suggests

that there is something discriminatory about Greyglers. But ERGs are in fact just informal affinity

groups formed around shared interests and values to which Google team members may voluntarily

choose to belong. Id. ¶ 5. Some examples of ERGs (there are others) are Greyglers, Gayglers,

Women@Google, Indus Googler, Black Googler Network, Hispanic Googlers Network, Filipino

Google Network, Asian Google Network, Mosaic, Google American Indian Network, and




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Disability Alliance. Id.

C. Google’s Hiring Process for SWEs, SREs, and SysEngs

Google conducts a rigorous technical evaluation of potential candidates for SWE, SRE, and

SysEng positions. Declaration of Brian Ong (“Ong Decl.”) ¶¶ 6-11.1 Typically, after Google

identifies a promising candidate from among the large volume of applications it receives, recruiters

conduct Recruiter Screen phone interviews (“RS”) to assess candidates’ general interest in a

position at Google and their current roles and responsibilities. Id. ¶ 6. If the candidate passes the

RS interview, the candidate is invited to participate in a Technical Phone Screen (“TPS”)

interview. Id.

TPS interviewers are engineers and tend to have prior experience conducting interviews for

Google. Id. ¶ 7. During a TPS interview, the interviewer presents the candidate with a series of

technical challenges related to computer code or systems design, and the candidate responds—for

instance, by proposing an algorithm or a piece of computer code. Id. The TPS interviewer then

enters the interview scores, notes, and comments into gHire, Google’s system of record for

managing the hiring process and making hiring decisions. Id. Here, Heath did not pass his TPS.

ECF 18 (FAC ¶¶ 16-31); Ong Decl., Ex. 2 at 5544-5545.

Candidates who pass the TPS interview may be invited to participate in an onsite interview.

Id. ¶ 8. Onsite interviews typically consist of four or five separate in-person interviews. Id.

Candidates are matched with employees who have the relevant technical skillset and/or any

specialized knowledge required for the relevant job opening. Id. For instance, because some

SWEs have specialized skillsets related to particular computer applications or operating systems by

comparison to General SWEs, Google tries to match candidates with interviewers who have

expertise in these areas. Id. Like TPS interviewers, onsite interviewers test a candidate’s

proficiency with algorithms and systems design, and then enter their interview scores, notes, and

comments into gHire. Id. Typically, the recruiting team then evaluates the interview scores, notes,

and comments and decides whether the candidate should be reviewed by a Hiring Committee. Id.

1 Plaintiffs’ own evidence presents an overview of the hiring process for SREs. Fillekes Br., Ex. 3(“Life of an SRE Candidate”).




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¶ 9. Fillekes was interviewed onsite several times over a period of years by Google, but not did

progress to the Hiring Committee stage during the class period. Ong Decl. ¶¶ 23-26, Ex. 1.

Hiring Committees are usually comprised of at least four experienced Google employees

who have the relevant skillset to assess a candidate. Id. ¶ 10. At Google’s headquarters in

Mountain View there are several different Hiring Committees that meet weekly to evaluate SWE

candidates. Id. There are also Hiring Committees in other locations such as New York. Id.

Although any given Hiring Committee’s membership is relatively constant from week to week,

members do come and go over time. Id.

Hiring Committee members do not meet candidates in person at all as part of the ordinary

hiring process. Id. ¶ 11. Rather, they deliberate on a candidate as a group based on the entire

written record of interview scores and notes in gHire, and then vote on whether to recommend an

offer of employment. Id. If a candidate passes the Hiring Committee phase, there are then

additional business-level reviews before an offer may be made. Id.

III. APPLICABLE STANDARD

Plaintiffs seek to conditionally certify a single cause of action for disparate treatment under

the ADEA. ECF 18 (FAC ¶ 56).2 Collective actions under the ADEA are authorized by 29 U.S.C.

§ 626(b), which explicitly incorporates the opt-in class mechanism contained in the FLSA as

codified at 29 U.S.C. § 216(b). The decision whether to conditionally certify a collective action

lies within the sound discretion of the trial court. Leuthold v. Destination Am., Inc., 224 F.R.D.

462, 466 (N.D. Cal. 2004). Although Plaintiffs’ burden at the conditional certification or “notice”

stage is not heavy,3 certification is not automatic, and the similarly-situated requirement “still has

2 The original Complaint in this action also pleaded a disparate impact claim under the ADEA.ECF 1 (Comp. ¶ 52). After Google filed a Rule 12(b)(6) motion explaining that disparate claimsare not actionable under the ADEA (ECF16), Plaintiffs abandoned that claim in their amendedcomplaint. ECF 18 (FAC ¶¶ 52-57).3 Google contends that the two-stage process for conditional certification/decertification as well asthe lenient standard for conditional certification under the FLSA, which are not mandated, seeRomero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 481 (E.D. Cal. 2006), should not apply incollective actions under the ADEA. Early notice to putative opt-ins is not necessary in ADEAcollective actions as it is in FLSA collective actions, where the statute of limitations continues torun until an individual opts in. In ADEA collective actions, assuming the named plaintiff’s EEOCcharge is timely filed and puts the employer on notice of the class-based nature of the allegeddiscrimination, as long as their claims accrue within the same time period as the plaintiff’s claims,




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teeth.” Cruz v. Bristol-Myers Squibb Co., PR Inc., 699 F.3d 563, 569 (1st Cir. 2012). Certification

must be denied where plaintiffs do not establish that they are “similarly situated” to putative opt-

ins by presenting “substantial allegations, supported by declarations or discovery, that putative

class members were together the victims of a single decision, policy, or plan.” Velasquez v.

HSBC Fin. Corp., 266 F.R.D. 424, 427, 431 (N.D. Cal. 2010) (emphasis added); Roberts v. Target

Corp., No. CIV-11-0951-HE, 2013 WL 5256867, at *4 (W.D. Okla. Sept. 17, 2013); Pfohl v.

Farmers Ins. Grp., No. CV03-3080 DT (RCX), 2004 WL 554834, at *7 (C.D. Cal. Mar. 1, 2004).

The relevant inquiry is not whether the court has discretion to facilitate notice, but whether

plaintiffs are “similarly situated” and whether “judicial economy” would be promoted by allowing

the case to proceed as a collective action. Trinh v. JP Morgan Chase & Co., No. 07-CV-1666 W

(WMC), 2008 WL 1860161, at *2 (S.D. Cal. Apr. 22, 2008) (relying on Hoffmann-La Roche Inc. v.

Sperling, 493 U.S. 165, 170 (1989)). Neither the Supreme Court nor the Ninth Circuit has

interpreted the term “similarly situated.” Senne v. Kansas City Royals Baseball Corp., No. 14-CV-

00608-JCS, 2015 WL 6152476, at *13 (N.D. Cal. Oct. 20, 2015). Other courts interpreting this

term have looked at several factors in determining whether plaintiffs are similarly situated,

including: (i) whether there is evidence that the alleged activity was part of a companywide policy

or practice; (ii) the extent of the similarities among the members of the proposed collective action,

in particular whether the members all are challenging the same employment practice; and (iii) the

extent to which the members of the proposed action will rely on common evidence. Trinh, 2008

WL 1860161, at *3 (citing Hyman v. First Union Corp., 982 F. Supp. 1, 3–5 (D.D.C.1997));

Velasquez, 266 F.R.D. at 430-31.

Plaintiffs cannot rely on insubstantial allegations and speculation at the notice stage. They

opt-ins may “piggy back” on the plaintiff’s charge without filing their own charge. Bean v. CrockerNat’l Bank, 600 F.2d 754, 759-60 (9th Cir. 1979). So there is no justification for early notice toputative opt-ins in ADEA collective actions (the statute is effectively tolled), and the lenientstandard that courts apply on conditional certification serves only to allow cases to proceed ascollective actions when doing so—as here—plainly does not serve the interests of judicialefficiency and economy. What is more, ADEA collective actions share many features with TitleVII class actions so a more rigorous standard should apply before decertification. For these andother reasons, some courts apply a more rigorous modified Rule 23 analysis in ADEA collectiveactions. E.g., Shushan v. Univ. of Colo., 132 F.R.D. 263, 264-65 (D. Colo. 1990).




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have the burden of making “detailed allegations supported by affidavits which successfully engage

a defendant’s affidavits to the contrary.” Trinh, 2008 WL 1860161, at *3 (citing Hipp v. Nat’l

Liberty Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001)). Because plaintiffs’ allegations and

evidence must suggest “class-wide discrimination” (id.), courts “examine the extent to which

proposed plaintiffs will rely on common evidence and the level of individualized inquiries required

when deciding whether to conditionally certify a collective action.” Kellgren v. Petco Animal

Supplies, Inc., No. 13CV644 L KSC, 2015 WL 5167144, at *4 (S.D. Cal. Sept. 3, 2015) (citing

Trinh, 2008 WL 1860161 at *5).

Preliminarily, the lens the Court must use to determine if conditional certification is

appropriate is the substantive elements of the claims and the potential proof for those claims. To

that end, a plaintiff bringing a disparate treatment claim under the ADEA must prove “by a

preponderance of the evidence (which may be direct or circumstantial) that age was the ‘but for’

cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178

(2009). The plaintiff’s age must have “actually played a role in [the employer’s decision-making]

process and had a determinative influence on the outcome.” Id. at 176 (quoting Hazen Paper Co.

v. Biggins, 507 U.S. 603, 610 (1993) (emphasis added)). These proof requirements put at issue a

multiplicity of evidence ranging from the plaintiff’s qualifications and the qualifications and age of

the person hired in her stead, to the employer’s legitimate, nondiscriminatory reasons for not hiring

the plaintiff, to any other evidence that tends to prove or disprove that the plaintiff was the victim

of intentional age discrimination. For example, whether the applicant who was actually hired is

“substantially younger” or only “insignificantly younger” than the plaintiff who alleges she was

discriminatorily denied the position is relevant and requires a case-by-case determination. See

O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) (holding no inference of

intentional age discrimination “can be drawn from the replacement of one worker with another

worker insignificantly younger”); Earl v. Nielsen Media Research, 658 F.3d 1108, 1116 (9th Cir.

2011) (comparison with younger employee within protected class is permissible).

So, faced with a putative collective action for age discrimination, courts consider the

myriad factual determinations that a jury would have to make for the plaintiff and putative opt-ins




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and how particularized those are. Specifically, they consider whether there are “substantial

allegations that the putative class members were together the victims of a single decision, policy,

or plan infected by discrimination,” or if instead the plaintiffs’ and putative opt-ins’ claims are

inherently individualized. Sperling v. Hoffman-LaRoche, Inc., 118 F.R.D. 392, 407 (D. N.J. 1988)

(emphasis added), aff’d in part & appeal dismissed in part, 862 F.2d 439 (3d Cir. 1988), aff’d &

remanded, 493 U.S. 165 (1989); Velasquez., 266 F.R.D. at 430-31; Trinh, 2008 WL 1860161, at

*3.

IV. ARGUMENT & AUTHORITIES

A. Plaintiffs’ Insubstantial Allegations Do Not Show A “Single Decision, Policy, orPlan” Infected By Intentional Age Discrimination.

In this case, the only evidence of a single decision, policy, or plan is Google’s written EEO

policy that prohibits discrimination on the basis of age or other protected categories. Silverstein

Decl. ¶¶ 2-4. Faced with this policy, Plaintiffs try in vain to substantiate their speculative

assertions that Google discriminates on the basis of age. Notably, Fillekes and Heath do not even

agree with each other about how the alleged discrimination operates. Despite the fact that Heath

failed his TPS interview because he did not demonstrate even a “very basic” understanding of

computer science (Ong Decl., Ex. 2 at 5545), Heath claims – based on nothing but his

unsubstantiated speculation – that the TPS interviewer estimated his age from his resume or maybe

his personal website source (Heath cannot say which) and then intentionally gave him an

inadequate opportunity to shine in his TPS interview. ECF 18 (FAC ¶¶ 16-31); ECF 78-1 (Heath

Decl. ¶ 7). Spinning her own speculative conspiracy theory, Fillekes asserts that Google waits until

the in-person interview stage and then, based on a candidate’s physical appearance, decides not to

recommend hiring the candidate. ECF 75 (Fillekes Br. at 2).

Given that Heath and Fillekes cannot get their stories straight, it is not surprising that

neither of them offers a coherent theory, much less one that is supported by substantial evidence.

If Heath is right, Google interviewers had already used age-related proxies on a candidate’s resume

or personal website to determine the candidate’s age before the TPS interview (ECF 78 (Heath Br.

at 3-4), which contradicts Fillekes’ theory and renders incomprehensible Google’s alleged decision




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to nevertheless waste numerous Google employees’ time with a round of five or six onsite

interviews only to reject the candidate on the basis of age. If Fillekes is right, then the alleged

mechanism of discrimination occurs during onsite interviews, which is contradicted by her

admission that Google repeatedly and subsequently recruited her and invited her to additional

onsite interviews for years after allegedly discerning her age at her first in-person interview with

Google in 2007. ECF 18 (FAC ¶¶ 33-41); Ong Decl., Ex. 1. In addition, Fillekes’ proposed class

also explicitly excludes her co-Plaintiff, to the chagrin of Heath whose EEOC charge forms the

basis of the proposed class period based on the statute of limitations. ECF 78 (Heath Br. at 7).

Indeed, there appears to be an inherent conflict of interest between the putative collective action

Fillekes seeks (those who interviewed for SWE, SRE, or SysEng positions and received onsite

interviews) and the putative collective action sought by Heath (those who did not receive onsite

interviews).

Without any coherent theory to go on, Plaintiffs try to cobble together anecdotal allegations

of discrimination without ever identifying—much less supporting with evidence—a single

discriminatory policy, plan or decision that allegedly victimized them and putative opt-ins, as

explained below.

B. Heath’s Speculative, Idiosyncratic Allegations Do Not Merit a Massive NoticeCampaign to Stir-Up Litigation.

Plaintiff Heath proposes a class of all applicants 40 years of age or older who applied for a

SWE, SRE, or SysEng position with Google from August 13, 2010 to date. ECF 78 (Heath Br. at

1-2). He alleges that, on February 8, 2011, a TPS interviewer subjected him to age-discrimination

after Heath had revealed age-related information on his resume and his personal website. ECF 18

(FAC ¶¶ 16-31). He does not allege Google’s screener made any comment or asked any question

that might be construed as age-related. Id. Rather, Heath concluded that the screener manifested

age animus toward him by conducting his interview over “a speaker phone that did not function

well” rather than “hold[ing] the handset through the whole interview.” Id. ¶ 24. According to

Heath, the screener showed additional age animus toward him by declining Heath’s request to

submit written answers through Google Docs (rather than reading them aloud on the phone), and




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by electing to focus the technical phone screen interview on “three sections of technical

questions” rather than Heath’s “background, accomplishments, or qualifications.” Id. ¶¶ 26-28.

Not surprisingly, Heath provides no substantial allegation or evidence to suggest Google subjected

any other candidate to the peculiar—and facially implausible—form of age-discrimination that he

allegedly suffered. ECF 18 (FAC ¶¶ 15-31); ECF 78-1.

Further distinguishing Heath from members of his putative class are his deposition

testimony and personal records, which include letters he sent to the U.S. Department of Justice

showing he believes the TPS interviewer also discriminated against him on the basis of his U.S.

citizenship in addition to his age. Berry Decl., Ex. 1 (Heath Dep. 172:13-176:6, 193:19-196:1,

211:3-217:25, Ex. 5 at 1 (Feb. 14, 2011 draft Heath letter to EEOC, San Jose: “I believe that I am a

victim of age discrimination and race discrimination . . . .), Ex. 7 (July 25, 2011 Heath letter to U.S.

DOJ: “I believe that I am a victim of discrimination based on my being a citizen of the United

States,” and setting forth his allegations regarding how the Google TPS interviewer conducted

Heath’s February 2011 phone interview), Ex. 8 at 1 (Heath: “US STEM workers were not qualified

to be engineers, technicians, gophers . . . NOTHING! We however were qualified to pay the taxes

that funded the schools that educated the workers at Google”), Ex. 9 (Heath: “…mocking, taunting,

and smearing the US STEM worker is the currency of those who benefit by these FRAUDULENT

work visas”)); ECF 18 (FAC ¶ 24 (complaining TPS interviewer was “barely fluent in English.”)).

While Heath has not sued Google for citizenship discrimination, a jury must decide whether he was

the victim of intentional age discrimination in light of his contemporaneous and voluminous

statements about citizenship and other discrimination.

These unique admissions underscore that Heath is not similarly situated to members of his

proposed class. He is improperly using the collective action device to “stir up litigation” of

massive scope based on nothing but wild speculation that a single TPS interviewer once used the

unlikely mechanism of a poor phone connection to discriminate against him on the basis of his U.S.

citizenship and age. See Brooks v. BellSouth Telcoms, Inc., 164 F.R.D. 561, 567 (N.D. Ala. 1995).

///

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C. Google’s Individualized, Decentralized Decision-Making Requires Testimonyfrom Myriad Witnesses to Resolve Only Plaintiffs’ and Declarants’ Claims.

Fillekes’ assertion that “[h]iring decisions at Google for SWE, SRE, and SysEng positions

are made by centralized Hiring Committees” is unsupported speculation. ECF 75 (Fillekes Br. at

3). Her only “evidence” is a Google scheduling document showing that Hiring Committees exist

and a document describing the SRE hiring process that suggests no centralization whatsoever. Id.

Plf. Ex. 2, Fillekes Br., Ex. 3 at 2 (“Next, the recruiter assembles a hiring committee . . . . )

(emphasis added)). Other evidence she cites plainly contradicts her assertion of “centralization.”

Fillekes Br., Ex. 1 at 1 ( )

In reality, Google has several different Hiring Committees for SWE positions in its

Mountain View headquarters alone, and several other Hiring Committees for SWEs in its New

York offices and other locations. Ong Decl. ¶ 10. Also, Fillekes never interviewed for a SWE

position during the class period (ECF 75 (FAC ¶¶ 32-48)), and has not presented substantial

allegations to suggest that SRE and SysEng candidates like her are similarly situated to candidates

for SWE positions.

As set forth in the following chart,4 Google conducted a total of nine sets of in-person

interviews with Fillekes and the Declarants during the proposed class period, resulting in three

escalations to a Hiring Committee.5 Critically, the onsite interviews and Hiring Committee

4 The information in the chart is based on the following evidence: Ong Decl. ¶¶ 23-26 (onlyreached a Hiring Committee during class period), Ex. 3 at 5628-5638

( interviewers), Ex. 6 at 5744-5761 ( interviewers), Ex. 1 at 1523-1544, 1556-1577(Fillekes interviewers), Ex. 4 at 5700-5714 ( interviewers), Ex. 8 at 5801-5809 (interviewers), Ex. 9 at 5816-5823 ( interviewers at 1st interview), Ex. 5 at 5723-5735( interviewers); Fillekes Br., Ex. 15 ( Decl. ¶ 14 ( interviewers at 2nd

interview)); Ong. Decl., Ex. 10 (evaluations), Ex. 11 ( ), Ex. 12( )).5 Also, only six of the nine sets of in-person interviews involved employment positions that are partof the proposed class. See Ong Decl., Ex. 9 at 5817-5823 (

); Fillekes Br., Ex. 15( Decl. ¶ 14 (h), Ex. 8 at 5796-5808 ( ).

Also, Google never conducted an in-person interview with Plaintiff Heath or during theclass period. Ong Decl., Exs. 2, 6; ECF 18 (FAC ¶¶ 15-31). Finally, although Google didinterview Fillekes twice onsite during the class period, her candidacy did not reach a HiringCommittee. Ong Decl. ¶¶ 23-26, Ex. 1 at 1523-1544, 1556-1577.




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evaluations were conducted by different Google employees over a five-year span (id.):

Candidate Date(Position)

In-Person Interviewers Hiring CommitteeMembers

In total, different Google employees conducted in-person interviews with these

candidates and different Hiring Committee members considered certain of these candidates. Id.

Of these Google decision-makers,

. Id.6 These decision-makers’ testimony about why Plaintiffs

6 conducted an on interview with and an onsite interview with. Ong Decl., Ex. 6 at 5744-5747 ( ), Ex. 4 at 5708-

5711 ( ). She reported that

Ong Decl., Ex. 6 at 5746-5747 ( ), Ex. 6 at 5711 ( ).




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and the declarants were not hired and why others were hired in their stead is highly relevant to

whether they were the victims of intentional age discrimination.

Plaintiffs’ own evidence makes the same point. Plaintiffs and their Declarants collectively

identify by name at least different Google employees who conducted in-person interviews with

them either before or during the class period, and

.7 Of course, this figure does not include the numerous

(ECF 18 (FAC ¶¶ 33-41); Fillekes Br.,

Exs. 4, 5, 15-19), or the many members of the Hiring Committees who considered three of them.

Ong. Decl., ¶¶ 23-26, Exs. 10-12.

The number of Google decision-makers implicated by Fillekes’ proposed class would

increase dramatically if putative opt-ins were to join this action because they, too, would have been

evaluated by yet other onsite interviewers and members of Hiring Committees (if the opt-ins

progressed to the Hiring Committee stage). See Ong Decl. ¶ 10. This variation is magnified

exponentially in Heath’s proposed class because it potentially implicates every Google employee

or agent who played any role whatsoever in sorting through over one million applications that have

been submitted to Google during this time frame for SWE, SRE, and SysEng positions. Ong Decl.

¶ 13.

Any trial of Plaintiffs’ proposed classes would require testimony from all of the relevant

interviewers and members of the Hiring Committees over a five-year span of time, which plainly

would not promote the “efficient resolution in one proceeding of common issues of law and fact

arising from the same alleged discriminatory activity.” Hoffmann-La Roche Inc., 493 U.S. at 170.

7 Compare Fillekes Br., Ex. 4




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At most, Plaintiffs have presented allegations to suggest that certain candidates might have been

discriminated against, which Google denies. Because Plaintiffs have no evidence whatsoever of a

unifying scheme, conditional certification is inappropriate. Gallender v. Empire Fire & Marine

Ins. Co., No. CIV.A.505CV220DCBJMR, 2007 WL 325792, at *2 (S.D. Miss. Jan. 31, 2007)

(evidence of discrimination by national sales manager not enough absent evidence that he set

policy); Roberts, 2013 WL 5256867, at *4 (decisions made by different supervisors, in different

states, at different positions in the company without any “unifying scheme.”).

D. The Alleged Remarks by Google’s In-Person Interviewers Are the Antithesis ofCommon Evidence.

In disparate treatment cases, a facially discriminatory comment that is insufficiently tied to

the decision-making process is deemed a “stray remark” and does not warrant an inference of

discrimination. Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990); Scheitlin v.

Freescale Semiconductor, Inc., 465 Fed. App’x 698, 699 (9th Cir. 2012). In addition, an

ambiguous comment (i.e., a comment that may be construed as either discriminatory or benign) is

not probative of a discriminatory motive even when made by a decision-maker. Rose v. Wells

Fargo & Co., 902 F.2d 1417, 1423 (9th Cir. 1990) (reference to plaintiffs “as ‘part of an old-boy

network’…insufficient to create an inference of age discrimination [because] “[o]ld-boy network”

is generally considered a colloquialism unrelated to age.”).

Here, Fillekes asserts that Google did not hire her or her Declarants after certain in-person

interviewers allegedly made improper age-based comments. These allegedly discriminatory

comments include that candidates were

.9 This kind of anecdotal evidence

is the antithesis of common proof. The jury would need to make credibility determinations and

8 Fillekes cites a Google webpage entitled “How We Hire,” which explains that the term“Googleyness” is used to describe a candidate’s “comfort with ambiguity…bias to actionand…collaborative nature.” Fillekes Br., Ex. 6 at 2.9 Plaintiffs also suggest that the affinity group at Google called “Greyglers” somehow carries apejorative connotation, inexplicably citing as evidence a public page on Google’s diversity website.ECF 75 (Fillekes Br. at 5); Fillekes Br., Ex. 7; Silverstein Decl. ¶ 5.




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assess, based on each interviewer’s testimony, whether each comment exhibited discriminatory

intent or is benign. In this regard, the jury would need to evaluate, among many other things, the

testimony from each of the onsite interviewers in light of their contemporaneous interview notes

showing positive assessments of the candidates’ “Googleyness” or cultural fitness. For instance,

the interview notes in gHire for Fillekes include that she was

10

Further complicating and rendering unmanageable a trial focused on this type of evidence is the

jury’s need to also consider whether a discriminatory comment, if any, was merely a “stray

remark” or was instead causally tied to the ultimate decision not to hire the candidate. See

Merrick, 892 F.2d at 1438; Rose, 902 F.2d at 1423.

In sum, litigating a disparate treatment action based on a potentially bewildering array of

vague and ambiguous comments would necessarily require an investigation into the circumstances

of each comment to assess whether intentional age animus was the “but for” cause of Google’s

decision not to hire each candidate. See Gross, 557 U.S. at 166-67 (Unlike Title VII, which

permits “mixed motive” actions, “to establish a disparate-treatment claim under the plain language

of the ADEA, a plaintiff must prove that age was the ‘but-for’ cause of the employer's adverse

decision.”); Scheitlin, 465 Fed. App’x at 699. In this regard, it is noteworthy that the jury would

also need to assess whether any allegedly discriminatory comment about a candidate’s “fitness” or

“Googleyness” was motivated by age-based bias or some other bias such as alleged animus toward

U.S. citizens, as with Heath. Berry Decl., Ex. 1 (Heath Dep., Exs. 5, 7-9). Plainly, the trial would

necessarily devolve into precisely the kind of candidate-by-candidate, interviewer-by-interviewer,

and comment-by-comment inquiry that makes the joinder mechanism of conditional certification

10 See also, e.g., Ong Decl., Ex. 3 at 5630 (

).




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inappropriate. See Trinh, 2008 WL 1860161, at *3; Gallender, 2007 WL 325792, at *2; Kellgren,

2015 WL 5167144, at *4.

E. Plaintiffs and Putative Opt-Ins Are Not Similarly Situated With Respect totheir Qualifications, Rendering Joinder of Opt-Ins Inappropriate.

Fillekes claims that “[l]imiting the class to candidates who participated in an in-person

interview helps ensure that only highly qualified candidates are included in the proposed class.”

Fillekes Mot. at 2. But she is simply assuming, without any evidentiary support, that putative class

members can commonly show they were qualified simply because they passed the initial TPS

interview. Id. In addition, Fillkes’ own evidence undermines her assumption. Her Exhibit 1 is a

Google document produced in discovery indicating that

Fillekes Br., Ex. 1 at 1. (“

) With so few candidates

who interviewed onsite receiving job offers, Fillekes cannot reasonably claim all candidates

interviewed onsite are presumptively qualified to work at Google. Id.

As a result, a complex inquiry into each candidate’s qualifications would be required. The

jury would need to consider each candidate’s qualifications and compare them against the

qualifications and ages of the candidates who received an offer of employment, in order to

determine if the alleged age-bias was the “but for” cause of Google’s decision not to hire each

candidate. See Gross, 557 U.S. at 166-67; Scheitlin, 465 Fed. App’x at 699. Specifically, with the

aid of expert testimony, the jury would need to consider each candidate’s performance in response

to the highly technical questions posed by each interviewer, and then weigh this evidence against

the interviewers’ actual assessments of each candidate’s performance. For example, after

challenging Fillekes to write computer code, formulate algorithms, and respond to conceptual

questions about systems design, interviewers concluded she was not technically qualified,

commenting: “.




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.11

Similarly, the TPS interviewer who interviewed Plaintiff Heath stated that

. Ong Decl., Ex. 2 at 5545. Not only would the jury need to consider each

putative class member’s technical proficiency and employment history, the jury would also need to

compare it against the demonstrated technical proficiency (and ages) of the candidates whom

Google offered the positions for which the Plaintiffs claim they were qualified.12 For these reasons

as well, conditional certification would be inappropriate.

F. Fillekes’ “Evidence” that Google Allegedly Used Initial Interviews toDetermine Applicants’ Ages Is Contradicted by the Facts and Fails to ShowCommon Proof.

Fillekes asserts that Google first interviewed her in person in 2007, when she was over age

40, but did not make her an offer of employment. ECF 18 (FAC ¶ 33); Berry Decl., Ex. 2 (Fillekes

Dep. 13:9-10). Fillekes admits that over the seven following years, Google repeatedly recruited

her for a variety of positions and invited her back for additional in-person interviews, escalating her

11 Accord Ong Decl., Ex. 10 at 5635 (

).12 Comparative employment histories would also merit consideration. In the case of Fillekes, thiswould include the fact that, at the time of her onsite interview in 2014, she was employed as theowner-operator of a yogurt-making company in upstate New York, after she had been terminatedby a tech upstart following one month’s employment. Berry Decl., Ex. 2 (Fillekes Dep. 83:1-84:7,85:1-88:4.)




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candidacy to hiring committees on multiple occasions. ECF 18 (FAC ¶¶ 33-41). Despite her

admission that she repeatedly succeeded at the in-person interview phase and progressed to Hiring

Committees, Fillekes speculates that her in-person interviewers assessed her age based on her

appearance and graduation dates on her resume and then discriminated against her on the basis of

her age. ECF 75 (Fillekes Br. at 6-7). In other words, Fillekes’ facially implausible theory is

contradicted by her own admissions and evidence. She offers no explanation as to why Google

interviewers who allegedly intended to discriminate against her and her Declarants would

nevertheless commend them highly enough to receive review by a Hiring Committee.

Nor does she explain why, if Google intended to discriminate on the basis of age after

determining age in a first in-person interview, it would repeatedly recruit and interview these

candidates later for the same or similar types of jobs. Yet that is exactly what happened. The

Google employees who conducted in-person interviews with declarants

during the class period gave them strong enough interview scores and comments that

these candidates progressed to the Hiring Committee stage. Ong Decl. ¶¶ 23-26, Exs. 10-12.

Also, in 2009, prior to the commencement of the class period, Google had previously interviewed

in person, at a time when they were over 40 years old, and afterwards continued to

recruit them and bring them back for additional onsite interviews . Ong Decl., Exs. 3-4; Fillekes

Br., Ex. Ex. 5 ( Decl. ¶¶ 8-14), Ex. 18 ( Decl. ¶¶ 4-14).

In addition, Google repeatedly recruited Fillekes and several of her Declarants for

subsequent job openings even after Google had already conducted in-person interviews with them

and ostensibly discerned that they were age 40 or older. For instance:

Plaintiff Cheryl Fillekes first attended an in-person interview session in August 2008, when

she was over 48 years old. Ong Decl., Ex. 1 at 1614-1634; Berry Decl. Ex. 2 (Fillekes Dep.

13:9-10); ECF 75 (FAC ¶ 33). After that, Google repeatedly pursued her for various job

openings—in April 2010 (phone interviews), May 2010 (in-person interviews), August

2011 (phone interviews), November 2011 (in-person interviews), March 2014 (phone

interviews), and August 2014 (in-person interviews). ECF 18 (FAC ¶¶ 35-41).

Google employees conducted in-person interviews with (Ong Decl.,




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Ex. 3 at 5676-5678),

; Ong Decl., Ex. 3 at 5638-5676.

. Fillekes Br., Ex. 5 ( Decl. ¶¶ 12-14); Ong Decl.

¶¶ 23, 24, Ex. 3 at 5628-5638, Ex. 10.

According to

Fillekes Br., Ex. 18 ( Decl. ¶¶ 5-7).

. Ong Decl. ¶¶ 23, 25, Ex. 4 at 5701-5721, Ex. 11; Fillekes Br.,

Ex. 18 ( . ¶¶ 9-13).

The same self-contradiction is evident in the comment Fillekes highlights from a Google

reviewer. Fillekes takes the comment “ out of context and

speculates it is a discriminatory remark. ECF 75 (Fillekes Br. at 6); Fillekes Br., Ex. 14. See

Hazen Paper Co., 507 U.S. at 611 (holding that age and years of service are analytically distinct).

In reality, the document shows this was not an age-related comment at all, but rather a reference to

. Fillekes Br., Ex. 14 at 2. And, the same reviewer

. Id.; ECF 18 (FAC

¶¶ 40, 41). At most, this is an ambiguous comment that Fillekes plucked out of context to give the

appearance of age-bias. See Merrick, 892 F.2d at 1438; Scheitlin, 465 Fed. App’x at 699.

G. Plaintiffs’ Reliance on Their Statistical “Evidence” Is Misplaced.

In support of conditional certification, Fillekes compares the supposed average age of

Google’s workforce (29) with that of U.S. “computer programmers” (42.8) and “computer

hardware engineers” (41.7). ECF 75 (Fillekes Br. at 2–3, 13, 16 (citing FAC)). She also

summarily suggests, without factual support, that there are “many individuals age 40 or older who

are available and well-qualified” for the three positions at issue. Id. at 3. Fillekes’ “statistical




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evidence” is not only not probative of age discrimination, but it also does not support conditional

certification.

For one thing, Fillekes’ cursory comments about “availability” of workers over age 40 do

not take into account data from the Bureau of Labor Statistics (BLS) showing that workers age 40

or older are not as available as younger workers. First, job tenure increases with age, making older

workers less mobile and less available. For example, in 2014, the median job tenure for employees

age 45-54 was 7.9 years and for employees age 55-64, 10.4 years. But for employees age 25-34,

the median is just 3.0 years.13 While the number of years in the workforce provides an upper

bound on job tenure, tenure is also lower for younger workers because they are more likely to

switch jobs and therefore be available, so much so that BLS describes this phenomenon as “the

persistent, voluntary job mobility of young workers.” Second, workers age 40 or older are less

available than younger workers because a larger percentage of younger workers are unemployed

and looking for another job than older workers. For example, for 2016, although the

unemployment rate for 24-34 year-olds is 5.5%, the rate for employees ages 45-54 and for ages 55-

64 is 3.7% and 3.8%, respectively.14 Fillekes’ broad assertion that older workers and younger

workers are equally available is belied by these facts showing that job mobility is greatest in the

earlier working years.

For another thing, on her “well qualified” assertion, Fillekes wrongly assumes that all BLS

“computer programmers” and “computer hardware engineers” in all industries do the same or

similar work and have equivalent qualifications to those of Google SWEs, SREs, and SysEngs.

And she compares the average age of workers in these positions to an unreliable snapshot of

Google’s workforce. But to validly compare a protected group’s availability in the relevant labor

market with the percentage of that group in an employer’s workforce requires a more refined

analysis than Fillekes’ crude numbers here.

13 U.S. Dep’t of Labor, Bureau of Labor Statistics, Table 1 (Median Years of Tenure with CurrentEmployer for Employed Wage and Salary Workers by Age and Sex),http://www.bls.gov/news.release/tenure.t01.htm (Jan. 2014).14 U.S. Dep’t of Labor, Bureau of Labor Statistics, Table (Labor Force Statistics from the CurrentPopulation Survey), http://www.bls.gov/opub/mlr/2005/02/art5full.pdf (Feb. 10, 2016).




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On the relevant-labor-market side, for statistics to be probative of intentional discrimination

in hiring, they must account not only for the relevant geographic area but also for the qualified

labor market when dealing with jobs involving skills that are not generally possessed or readily

acquired. Hazelwood School Dist. v. U.S., 433 U.S. 299, 309 n.13 (1977) (“When special

qualifications are required to fill particular jobs, comparisons to the general population (rather than

to the smaller group of individuals who possess the necessary qualifications) may have little

probative value.”); accord Teamsters v. U.S., 431 U.S. 324, 339-40 n.20 (1977) (“evidence

showing that the figures for the general population might not accurately reflect the pool of

qualified job applicants would also be relevant”). On the employer-workforce side, statistics are

not valid if they are based on a static snapshot of the employer’s workforce, but must instead

account for all the particular hiring decisions made during the relevant time period. Hazelwood,

433 U.S. at 309-12.

Here, on the relevant-labor-market side, special qualifications, skill, and experience are

indisputably required to fill Google’s SWE, SRE, and SysEng jobs. So Fillekes may compare only

the qualified labor market in the relevant geographic area to Google’s workforce. All she offers,

however, is the average age of Bureau of Labor Statistics’ “computer programmers” or “computer

hardware engineers” positions—presumably from all industries, from public administration to high

tech—without any evidence that these positions are comparable to Google’s SWE, SRE, or SysEng

positions and without any evidence that the individuals in these positions have the required

qualifications, skills, and experience to be SWEs, SREs, or SysEngs. In short, she offers no

evidence of the qualified labor market.

On the employer-workforce side, Fillekes relies on unverified estimates of the average age

of Google’s workforce, which are taken from payscale.com or CBS News and are presumably for

the entire workforce, not just for the positions here. As such, she bases her analysis on a static

snapshot of Google’s workforce instead of on all SWE, SRE, and SysEng hiring decisions made

during the relevant time period. ECF 75 (Fillekes Br. at 13). In sum, Fillekes’ so-called statistical

evidence, which is unsupported, unanalyzed, and misleading, is meaningless. More to the point, it

does not show that she, Heath, or any putative opt-ins were the victims of a single decision, policy,




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or plan infected by intentional age discrimination. Without this glue to hold these individualized

claims together, conditional certification is improper.

Plaintiffs will undoubtedly argue on reply that Google never produced data for her to

conduct a proper statistical analysis. Although these disputes are before the Magistrate Judge, the

discovery history is relevant to any such argument Plaintiffs may make. When served in

September 2015, Fillekes’ requests for production boldly asked for “any demographic or statistical

data of any kind” related to Google’s entire U.S. workforce, including gender and other

demographic categories in addition to age (Berry Decl., Ex. 3 (RFP No. 3)), even though she and

Heath have standing to challenge only the positions they were denied and have no basis at all for

seeking gender or other demographic data. In February 2016, Fillekes offered to narrow her

requests to a list of 62 different “Technical Positions” (ECF 57-2 at 6-7), and then limited the list

again in March 2016 to 33 specific “Technical Roles,” which included numerous positions other

than SWEs, SREs, and SysEngs along with positions that do not exist at Google. Berry Decl., Ex.

4, 5. It was not until late June of 2016 that Plaintiffs first presented Google with basic ESI

questions, after which they finally, on June 27, 2016, two days before filing their motion for

conditional certification, limited their request to age data for Google’s SRE, SWE, and SysEng

workforce during the class period. Id. In sum, Plaintiffs have only themselves to blame for not

having this data to offer in support of their motion.

H. The Reid Case and the EEOC Charges Do Not Support ConditionalCertification.

Next, Fillekes claims that evidence from the Reid case, where an executive, Brian Reid,

sued Google for age discrimination after being fired, shows that she, Heath, and putative opt-ins

who have applied for SWE, SRE, or SysEng positions were similarly discriminated against. ECF

75 (Fillekes Br. at 4-5, 14-15). She also claims that evidence of other EEOC charges of age

discrimination against Google show a pattern-or-practice of discrimination. Id at 4, 14. Contrary

to Fillekes’ claims, the Reid case and any other pending EEOC charges cut against conditional

certification because they highlight how individualized are the claims of Fillekes, Heath, and the

declarants.




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To begin with, as the Supreme Court stated in the Rule 23 context, just because a large

company that receives millions of applications each year is sued for hiring discrimination or has

charges of discrimination filed against it does not automatically mean that the company has

discriminated against a protected group on a classwide basis:

Conceptually, there is a wide gap between (a) an individual’s claim that he has[not been hired] on discriminatory grounds, and his otherwise unsupportedallegation that the company has a policy of discrimination, and (b) the existenceof a class of persons who have suffered the same injury as that individual, suchthat the individual’s claim and the class claims will share common questions oflaw or fact and that the individual’s claim will be typical of the class claims.

General Tel. Co. v. Falcon, 457 U.S. 147, 157 (1982). Plaintiffs argue that Rule 23’s commonality

and typicality requirements are inapplicable in § 216(b) actions. While there are “significant

differences between certification under [Rule] 23 and the joinder process under §216(b),” Genesis

Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1527 & n.1 (2013) (“Under the FLSA, . . .

‘conditional certification’ does not produce a class with an independent legal status, or join

additional parties to the action. The sole consequence of conditional certification is the sending of

court-approved written notice to employees, who in turn become parties to a collective action only

by filing written consent with the court.”), there are also similarities. Notably, in the ADEA

collective-action context, the Supreme Court has described § 216(b)’s “similarly situated”

requirement in language that mirrors the commonality requirement of Rule 23(a)(2): if this

requirement is met, courts benefit from the “efficient resolution in one proceeding of common

issues of law and fact arising from the same alleged discriminatory activity.” Sperling, 493 U.S. at

170 (emphasis added). So mere allegations that several persons have all suffered a violation of the

same law are not enough to tie together what are in fact highly individualized discrimination cases,

each with multiple discrete facts. More is required:

[T]he mere claim by employees of the same company that they have suffered aTitle VII injury ... gives no cause to believe that all their claims can productivelybe litigated at once. Their claims must depend on a common contention ... of sucha nature that it is capable of classwide resolution—which means thatdetermination of its truth or falsity will resolve an issue that is central to thevalidity of each one of the claims in one stroke.

Wal-Mart, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Put differently, although this Court need




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not decide the merits of Fillekes’ or Heath’s or any of the declarants’ claims, it must decide

whether, in light of the evidence and the proof on the elements of the claims, these persons were

victims of a single discriminatory decision, policy, or plan infected by age discrimination and so

whether their individual allegations and claims can be efficiently and fairly joined and tried

together in the same action. They cannot.

What is more, the allegations of the high-level executive in the Reid case do not evidence

classwide age discrimination, but are highly individualized. Specifically, Reid alleged that his

particular supervisors, who were themselves higher-ups, called him an “old guy,” a poor “culture

fit,” and a “fuddy duddy” with ideas “too old to matter” and then fired him. None of these alleged

remarks pertains to Fillekes or Heath or the declarants, none of these remarks is about hiring

discrimination (they are about Reid’s termination), and none of the higher-ups who allegedly made

these remarks is an interviewer or decision-maker here. So the allegations in Reid, which were

never adjudicated on the merits because the case settled, and the stray comments there bear no

relationship to Fillekes’ or Heath’s or the declarants’ allegations. See Merrick, 892 F.2d 1434,

1438 (9th Cir. 1990); Scheitlin, 465 Fed. App’x at 699. If anything, Reid’s allegations only

spotlight how fact-specific and individualized his and Fillekes’ and Heath’s age-discrimination

allegations are and how litigating and trying them in the same case would be unmanageable. In the

same vein, the fact that any other age-discrimination EEOC charges may have been filed against

Google does not establish that Fillekes, Heath, and the declarants are victims of a single

discriminatory decision, policy, or plan here, especially given the number of applications Google

receives. In sum, no inference of companywide discrimination arises from the Reid allegations or

any other EEOC charges.

I. Courts Repeatedly Refuse to Conditionally Certify ADEA Collective ActionsWhere Plaintiffs’ Allegations and Evidence Show No Unifying Scheme of AgeDiscrimination.

Courts have repeatedly declined to conditionally certify collective ADEA actions where, as

here, plaintiffs fail to present substantial allegations and evidence that the defendant intentionally

discriminated against the proposed class based on a single decision, policy or plan that was the “but

for” cause of the defendant’s failure to hire them. For instance, in Gallender, 2007 WL 325792, at




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*2, the Court concluded the plaintiff’s delay in moving for conditional certification was “fatal to

his motion” because he filed “one full year after the case was initially filed,” four months after the

deadline to file a joinder, and four days before the close of fact discovery. Id. at *2 (permitting

such delay would result in a “quagmire [that] would wreak havoc on the Court’s docket.”) The

Court then proceeded to deny the motion on the merits as well, after considering affidavits

submitted by the plaintiff and four other terminated employees who attested that the national sales

manager called two of them “dinosaurs,” described one of them as “a little too old for [the

manager’s] team,” and acknowledged the company’s “reputation for getting rid or older employees

and replacing them with younger employees.” Id. Plaintiffs failed to carry their burden because

the affidavits “at most” showed age animus of the national sales manager, and plaintiffs’ evidence

did not suggest he was “involved with creating a company-wide decision, policy, or plan to

discriminate against salesman over forty years of age.” Id. at 3; see also id. at 2 (rejecting as

“conclusory” the affiants’ boilerplate assertion that the defendant had a company-wide pattern or

practice of age-discrimination).

Similarly, in Brooks, the Court rejected the plaintiffs’ bid to “stir up litigation” by sending

notice to at least 10,000 putative ADEA opt-ins affected by layoffs. 164 F.R.D. at 567. Faced with

plaintiffs’ statistical and documentary evidence, including defendant’s internal documents stating

“WORK FORCE—Mature—Move Out” and “WEAKNESSES—Aging Work Force,” the Court

denied conditional certification. Id. at 564. It did so because plaintiffs had no evidence of a link

between the documents (one of which was a decade old and issued from parts of the organization

in which the plaintiffs did not work) and the early retirement plan the plaintiffs were challenging.

Id. Absent that link, the court concluded that the “specific circumstances of the former employees

are notably diverse and . . . [the court] would be faced with numerous individualized issues.” Id. at

567, 569; see also Roberts, 2013 WL 5256867, at *4 (denying conditional certification of an

ADEA action where there was no substantial evidence of a “unifying scheme” linking the age-

discrimination claims of two terminated employees who worked for different supervisors, in

different states, at different positions in the company, and no evidence of plan to terminate older

workers); Lawrence v. Town of Irondequoit, 246 F. Supp. 2d 150, 174 (W.D.N.Y. 2002) (denying




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motion to conditionally certify an ADEA class of 37 retirees from municipal employment based on

allegations that the municipality offered superior health benefits to younger workers by comparison

to retirees, where some putative opt-ins would have no ADEA claim because they received some

health benefits of younger workers).

FLSA authorities are in accord. In Castle v. Wells Fargo Fin., Inc., No. C 06-4347SI, 2008

WL 495705, (N.D. Cal. Feb. 20, 2008), for example, the Court (Illston, J.) denied certification of

an opt-in class in a FLSA action because there were “numerous individual issues that make

certification inappropriate” as shown by the declarations that the plaintiffs submitted in support of

their motion. Id. at *2, n. 3. (“[Plaintiffs] have not identified any company-wide policy or practice

to deny overtime” and the declarants “were allegedly required to work off the clock in a variety of

different circumstances.” ) Id. at *5. To the same effect is Velasquez, where the Court (Conti, J.)

denied Plaintiffs’ request to authorize notice to 10,000 former account executives based on 11

declarations attesting that defendant’s performance targets and management incentives caused

them to personally perform uncompensated overtime work. 266 F.R.D. at 427, 431. That evidence

was insufficient to suggest a companywide policy. Id.. Finally, the Court in Pfohl also found

conditional certification inappropriate where the plaintiff failed to show that putative opt-ins were

similarly situated to litigate an administrative exemption case through common proof, because

plaintiffs’ evidence did not suggest that “all putative opt-in members were paid similarly or

performed similar job duties.” 2004 WL 554834, at *7; accord Trinh, 2008 WL 1860161, at *3;

Adair v. Wisconsin Bell, Inc., No. 08-C-280, 2008 WL 4224360, *7 (E.D. Wisc. Sep. 11, 2008)

(denying conditional certification of FLSA action where plaintiffs “provided no facts to suggest

that supervisors, other than their own, observed employees working outside their scheduled tours

and permitted such conduct.”).

As with the plaintiffs in these cases, Plaintiffs here have likewise failed to present

substantial allegations of a single policy, plan, or decision that might warrant conditional

certification. As a result, their request to issue notice to putative opt-ins should be rejected.

Plaintiffs misplace their reliance on the ADEA collective action decisions they cite (see

ECF 75 at 11-12), which show evidence of a single decision, policy, or plan (e.g., RIF or high-level




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discriminatory actions):

Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 168 (1989), involved a single decision

to discharge or demote 1,200 workers as part of a reduction in force, and the Court did not

address certification issues. Id. at 168;

Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1100 (10th Cir. 2001) was a

conditionally certified action based on a defendant’s policy of “blocking” the advancement

of younger talent, where evidence of internal memoranda and presentations showed that

top-level executives ordered HR managers to identify “blockers” for potential termination

such that “managers were effectively instructed to discuss the blocker policy with their

respective operational managers, and assist the operational managers in identifying blockers

and carrying out the policy.” Id. at 1100;

Pines v. State Farm Gen. Ins. Co., No. SACV89-631AHS(RWRX),1992 WL 92398 (C.D.

Cal. Feb. 25, 1992) involved an action conditionally certified based on a manager’s written

instruction to those in the hiring process that they should only hire people “between 25 and

45” years old, a publication by defendant that re-iterated the age-based guidance, and a

hiring document showing a scoring system that increased the score for candidates “aged 20

to 40.” Id. at *3;

Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483 (D. Kan. 2004) was a phased

reduction in force (RIF) where the defendant revised its numerical ranking system such that

older workers received lower scores than previously, and moved younger workers to

positions protected from the RIF while moving older workers to positions targeted by the

RIF. Id. at 485-86; and

Pagliolo v. Guidant Corp., No. CIV. 06-943DWFSRN, 2007 WL 2892400 (D. Minn. Sept.

28, 2007) was a collective action based on a single RIF involving 527 employees, where

defendant’s own figures showed that 366 of the discharged employees were over the age of

40. Id. at *1, 3.

Unlike the plaintiffs in these ADEA cases, Plaintiffs here have identified no policy, plan, or

decision of discrimination, such as a RIF affecting current employees who were presumptively




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qualified to work for the defendant or management-level instructions to target employees in the

protected age class. See id. Thus, Plaintiffs’ reliance on these authorities is misplaced.

V. GOOGLE’S OBJECTIONS TO PLAINTIFFS’ PROPOSED PRODUCTION OFPUTATIVE OPT-INS’ CONTACT INFORMATION AND PROPOSED NOTICE

Google objects to Plaintiffs’ request that the Court order Google to produce “within 15

days” the names and contact information of potential opt-ins. Google does not maintain birthdate

or age data on its job applicants (Ong Decl. ¶ 12), as Plaintiffs’ counsel have already been

informed repeatedly during discovery discussions. Recognizing that there is no systematic way of

identifying the ages of all applicants (Heath) or all candidates who interviewed in-person

(Fillekes), Plaintiffs suggest that the notice list can be compiled based on reported graduation dates,

if any, as a proxy for age. ECF 75 (Fillekes Br. at 19). At a minimum, this would require the

parties to negotiate the graduation date ranges that may serve as adequate proxies for age, and how

to treat applicants and candidates for whom Google does not have graduation dates. In addition,

given the large volume of applicants and in-person interviewees whose files would need to be

analyzed, a 15-day production deadline would create an overwhelming burden on Google.

If the Court decides to conditionally certify a collective action, which it should not on the

facts here, Google respectfully requests that the Court discuss the logistics of issuing notice at the

case management conference set for the same day as the hearing on Plaintiffs’ motion and joinder.

Google further respectfully requests that the Court instruct the parties to meet and confer on the

proper form and content of the notice based on the Court’s order.

VI. GOOGLE’S OBJECTIONS TO PLAINTIFFS’ EVIDENCE

A. Plaintiffs’ Allegations and Statements in their Declarations ContainSpeculative and Conclusory Testimony Not Based On Personal Knowledge.

Under Rule of Evidence 602, Google objects to the conclusory statements by Plaintiffs and

their Declarants that they believe Google did not hire them and others because they were 40 years

of age or older. See ECF 18 (FAC ¶¶ 31, 40-48); ECF 78-1 (Heath Decl. ¶¶ 6, 8); Fillekes Br., Ex.

4 ( Decl. ¶ 16), Ex. 5 ( Decl. ¶¶ 14-15), Ex. 15 ( Decl. ¶ 19), Ex. 16

( Decl. ¶ 12), Ex. 17 ( Decl. ¶ 15), Ex. 18 ( Decl. ¶ 15), Ex. 19 ( Decl. ¶




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12). On the same basis, Google objects to Plaintiffs’ and their Declarants’ speculative self-

assessments that they performed well during their interviews or were qualified for the positions.

See ECF 18 (FAC ¶¶ 3, 4, 33, 35, 37, 40-48); Fillekes Br., Ex. 4 ( Decl. ¶¶ 7, 11, 13, 16),

Ex. 5 ( Decl. ¶¶ 7, 10, 15), Ex. 15 ( Decl. ¶¶ 7, 15, 19), Ex. 16 ( Decl. ¶¶

9, 10, 12), Ex. 17 ( Decl. ¶¶ 12, 15), Ex. 18 ( Decl. ¶¶ 7, 10, 15), Ex. 19 ( Decl.

¶¶ 8, 12). These statements are inadmissible because they lack foundation in personal knowledge.

B. Plaintiffs’ Statistical “Evidence” Regarding Google’s Workforce Is NotProbative and Has Not Been Authenticated

Plaintiffs rely on putative statistics regarding the age-composition of Google’s workforce

derived from two sources: a website called Payscale and a CBS News article. ECF 75 at 13, n.2.

This evidence is inadmissible because it is not relevant and has not been authenticated. Fed. R.

Evid. 401, 901.

C. Plaintiffs’ Evidence from the Reid Case and Other EEOC Charges IsIrrelevant, Inadmissible Hearsay, and More Prejudicial than Probative

Plaintiffs rely on alleged quotations from Google employees that plaintiffs extract from

California state court opinions in 2007 and 2010, in the Reid case. ECF 18 (FAC ¶ 50); ECF 75

(Fillekes Br. at 4-5). These alleged statements are inadmissible hearsay. Fed. R. Evid. 801. Also,

given that these alleged statements were made years before the class period, and plaintiffs have no

substantial allegation to link these statements to any decision-makers in this case, the alleged

quotations are irrelevant and more prejudicial than probative. Fed. R. Evid. 401, 403. Also,

Plaintiffs’ evidence of other EEOC charges against Google, ECF 18 (¶ 49); ECF 75 (Fillekes Br. at

4), is irrelevant and unduly prejudicial given the lack of any substantial allegation to link these

EEOC charges with the circumstances of this action. Fed. R. Evid. 401, 403.

D. The FAC Is Not Verified and Its Allegations Made On Information and BeliefAre Inadmissible

Plaintiffs cite liberally to their allegations in the FAC to support their arguments, including

citations to their allegations made on information and belief. ECF 75 (Fillekes Br. at 3 (citing

FAC ¶¶ 2, 5), at 5-6 (citing FAC ¶¶ 4, 32-42), at 14 (citing FAC ¶ 49), at 16 (citing FAC ¶ 4, 32-




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42)); ECF 78 (Heath Br. at 2 (citing FAC ¶¶ 51), at 3 (citing FAC ¶¶ 15, 16, 18, 55), at 4 (citing

¶¶ 19, 21, 22, 25-28), at 5 (citing FAC ¶¶ 29, 30)). Google objects that these allegations are

inadmissible because the complaint is not verified and allegations made on information and belief

lack foundation. Fed. R. Evid. 401, 602, 901.

VII. CONCLUSION

Although Plaintiffs on reply will remind the Court of the lenient standard for conditional

certification of ADEA collective actions, this standard “still has teeth” and “cannot be satisfied by

unsupported assertions.” Cruz, 699 F.3d at 569 (quoting Myers v. Hertz Corp., 624 F.3d 537, 555

(2d Cir. 2010)). Here, the evidence shows that the age-discrimination allegations and claims of

Fillekes, Heath, and the seven declarants are hopelessly heterogeneous and that the determinations

a factfinder would have to make for each individual claimant are myriad. If Plaintiffs actually had

common evidence—i.e., substantial allegations to show that they were victims of a single decision,

policy, or plan infected by intentional age discrimination—then adding the declarants or opt-ins

would not substantially increase the quantum of evidence. But adding the declarants and any opt-

ins to the mix here would require the presentation of significant amounts of new and equally

individualized evidence in order to resolve any discrimination claims that those individuals might

have. For these reasons, those above, and those discussed in Google’s Motion to Strike, Google

respectfully requests that the Court deny Plaintiff Fillekes’ Motion For Conditional Certification of

Collective Action (ECF 75) and Plaintiff Heath’s Partial Joinder (ECF 78) in their entirety and

allow Plaintiffs’ individual claims to proceed.

DATED: July 29, 2016 OGLETREE, DEAKINS, NASH, SMOAK &STEWART, P.C.

By: /s/Thomas M. McInerneyA. Craig ClelandBrian D. Berry

Attorneys for DefendantGOOGLE INC.


Documents

pro hac vice€¦ · · 2017-01-09v. GOOGLE INC., a Delaware corporation, Defendant. Case No. 5:15-cv-01824-BLF DEFENDANT GOOGLE INC.’S OPPOSITION TO PLAINTIFF CHERYL FILLEKES’