On December 19, 2005, plaintiffs, all former employees of the Boeing Company, filed suit in the United States District Court of Kansas against Boeing, Spirit Aerosystems Inc., the Onex Corporation, and Midwestern Aircraft, for violations of various laws during the layoff and rehire process in connection with Boeing's sale of its commercial airplane manufacturing facilities to Onex.
In 2005, Boeing sold its Wichita and Oklahoma facilities to Onex, which created Spirit as a subsidiary specifically for the purpose of purchasing the facilities. As part of the sale, Boeing laid off all employees at those facilities in two mass layoffs in May and June of 2005. Some but not all of those laid off employees were then hired by Spirit. Those not hired by Spirit filed this lawsuit, alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1140, the Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626(f)(1), the Labor Management Relations Act ("LMRA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., and the Americans with Disability Act ("ADA") . The plaintiffs sought declaratory, injunctive, and monetary relief as well as class certification.
Represented by private counsel, the plaintiffs alleged that Boeing's layoff process started in 2002 as part of a plan to reduce the average age and wage of its workforce in order to make the facilities more attractive to potential buyers. Therefore, the plaintiffs asked the court to certify a class of all former Wichita or Oklahoma facility employees who were terminated or laid off by Boeing and not re-hired by Onex and who were over age 40 or older on the date of termination, layoff, or non-hire.
On February 27, 2006, the plaintiffs voluntarily dismissed all claims against Midwestern, leaving Boeing, Spirit and Onex as co-defendants. On November 15, 2006, the District Court (Judge Monti L. Belot) granted the plaintiffs' motion for conditional class certification and notice under the ADEA. On December 18, 2006, the Court granted the defendants' motion for judgment on the pleadings and dismissed the plaintiffs' records-keeping and OWBPA claims.
On October 30, 2007, the Court found that the plaintiffs failed to exhaust their administrative remedies; the Court dismissed the plaintiffs' ADEA claims stemming from conduct that occurred prior to January 1, 2005 as well as the retaliation claim. Apsley v. Boeing Co., CIV.A. 05-1368-MLB, 2007 WL 3231526
(D. Kan. Oct. 30, 2007). Since the Court ruled that the ADEA claims could only be granted from January 1, 2005, part of the previously certified class was dismissed as well. The claims remaining after these dismissals were the ADEA claim for conduct after January 1, 2005, the ERISA claim and the LMRA claim.
During the discovery process, the plaintiffs moved to amend their complaint to dismiss all claims against Onex and add factual allegations and a civil conspiracy claim. The defendants opposed the plaintiffs' citation to documents protected by an agreed protective order and argued that the conspiracy claim was futile. On May 21, 2008, the Court (Magistrate Judge Karen M. Humphreys) ordered the parties to confer on the citation issues and granted the plaintiffs' motion in part but denied them leave to add the conspiracy claim. The claims against Onex were dismissed on June 24, 2008, leaving Boeing and Spirit as the remaining defendants. 2008 WL 191418
(D. Kan. Jan. 22, 2008); 2008 WL 5211001
(D. Kan. Dec. 9, 2008).
The case was reassigned to Judge Eric F. Melgren on October 21, 2008. The plaintiffs moved to recuse Judge Melgren for his previous representation of Boeing and his position as a partner at the law firm representing Boeing in this case. Judge Melgren denied the motion on July 2, 2009.
Defendants then moved for summary judgment on Plaintiffs' remaining claims and asked the Court to decertify the plaintiffs' class under the ADEA. The Court granted summary judgment on June 30, 2010 with regard to the ERISA claims, the LMRA claims, ADEA pattern or practice of intentional age discrimination claim, and ADEA disparate impact claim. Apsley v. Boeing Co., 722 F. Supp. 2d 1218
(D. Kan. 2010). The Court found that the statistical disparities in the experts' reports were not significant enough to suggest an inference of discrimination in this case. Furthermore, the Court found the plaintiffs' motion for class certification moot. The plaintiffs filed a motion for reconsideration and asked the Court for additional time for discovery, which was denied on March 28, 2011. Apsley v. Boeing Co., 05-1368-EFM, 2011 WL 1118835
(D. Kan. Mar. 28, 2011). At this point, the only remaining claim was the disparate treatment claim under the ADEA. The plaintiffs appealed the Court's two summary judgment decisions and the denial of reconsideration to the 10th Circuit, which affirmed the lower court's decision. Apsley v. Boeing Co., 691 F.3d 1184 (10th Cir. 2012)
Both parties jointly filed a motion to sever pro se plaintiffs for their individual ADEA claims of disparate treatment, which was granted by the Court on January 10, 2013. Those who would not pursue their individual claims against the defendants were subsequently dismissed.
On March 22, 2013, the remaining 87 plaintiffs filed their fifth amended complaint against the defendants, claiming disparate treatment in violation of the ADEA. On July 15, 2013, Magistrate Judge Humphreys denied the defendants' motion to sever. The case is ongoing.Matthew Aibel - 05/06/2008
Emma Bao - 07/29/2013