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Case Name Apsley v. Boeing Co. EE-KS-0026
Docket / Court 6:05-cv-01368-EFM-KMH ( D. Kan. )
State/Territory Kansas
Case Type(s) Equal Employment
Case Summary
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 ... read more >
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


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Issues and Causes of Action
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Issues
Defendant-type
Transportation
Discrimination-area
Discharge / Constructive Discharge / Layoff
Hiring
Pay / Benefits
Discrimination-basis
Age discrimination
General
Disparate Impact
Disparate Treatment
Pattern or Practice
Record-keeping
Retaliation
Plaintiff Type
Private Plaintiff
Causes of Action Title VII (including PDA), 42 U.S.C. § 2000e
Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq.
Defendant(s) Boeing Company
Onex Corporation
Spirit Aerosystems
Plaintiff Description Employees at the Wichita and Oklahoma facilities of the Boeing Company who were not offered jobs during the layoff and rehire process in connection with the sale of these facilities to Spirit Aerosystems Inc.
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted Moot
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Additional Resources
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Case Studies Megacases, Diversity, and the Elusive Goal of Workplace Reform
Written: Mar. 01, 2008
By: Nancy Levit (University of Missouri-Kansas City School of Law)
Citation: 49 B.C. L. Rev. 367 (2008)
[ Detail ] [ External Link ]

  Second Generation Employment Discrimination: A Structural Approach
By: Susan Sturm (Columbia Law School)
Citation: 101 Colum. L. Rev. 458 (2001)
[ Detail ] [ External Link ]

Docket(s)
6:05-cv-01368-EFM-KMH (D. Kan.) 07/15/2013
EE-KS-0026-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint-Class Action 12/09/2005
EE-KS-0026-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order conditionally certifying class 11/15/2006 (D. Kan.)
EE-KS-0026-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order 12/18/2006 (D. Kan.)
EE-KS-0026-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order granting in part motion to compel 01/18/2007 (2007 WL 163201) (D. Kan.)
EE-KS-0026-0014.pdf | WESTLAW | Detail
Order granting in part motion to compel interrogatories 10/24/2007 (2007 WL 3120712) (D. Kan.)
EE-KS-0026-0015.pdf | WESTLAW | Detail
Order granting summary judgment 10/30/2007 (2007 WL 3231526) (D. Kan.)
EE-KS-0026-0016.pdf | WESTLAW | Detail
Memorandum and Order 01/22/2008 (2008 WL 191418) (D. Kan.)
EE-KS-0026-0005.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order 05/21/2008 (D. Kan.)
EE-KS-0026-0006.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order 12/09/2008 (2008 WL 5211001) (D. Kan.)
EE-KS-0026-0013.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order 07/02/2009 (D. Kan.)
EE-KS-0026-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order 06/30/2010 (722 F.Supp.2d 1218) (D. Kan.)
EE-KS-0026-0008.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order 03/28/2011 (2011 WL 1118835) (D. Kan.)
EE-KS-0026-0009.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Nunc Pro Tunc Order 07/12/2011 (2011 WL 2690119) (D. Kan.)
EE-KS-0026-0010.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order 02/09/2012 (2012 WL 415458) (D. Kan.)
EE-KS-0026-0011.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judgment 08/27/2012 (691 F.3d 1184)
EE-KS-0026-0012.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Fifth Amended Complaint 03/22/2013
EE-KS-0026-0001.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Belot, Monti L. (D. Kan.)
EE-KS-0026-0002 | EE-KS-0026-0003 | EE-KS-0026-0016
Humphreys, Karen M. (D. Kan.) [Magistrate]
EE-KS-0026-0005 | EE-KS-0026-0006 | EE-KS-0026-0011 | EE-KS-0026-0013 | EE-KS-0026-0014 | EE-KS-0026-0015 | EE-KS-0026-9000
Melgren, Eric F. (D. Kan.)
EE-KS-0026-0007 | EE-KS-0026-0008 | EE-KS-0026-0009 | EE-KS-0026-0010 | EE-KS-0026-9000
Monitors/Masters None on record
Plaintiff's Lawyers Centeno, Monique K. (Kansas)
EE-KS-0026-9000
Gore, James E (Mississippi)
EE-KS-0026-0001
McCausland, Paul S (Kansas)
EE-KS-0026-9000
Ohaebosim, Uzo L. (Kansas)
EE-KS-0026-0004 | EE-KS-0026-9000
Williamson, Lawrence W. Jr. (Kansas)
EE-KS-0026-0001 | EE-KS-0026-0004 | EE-KS-0026-9000
Defendant's Lawyers Armstrong, James M. (Kansas)
EE-KS-0026-9000
Counts, Sophie K. (Texas)
EE-KS-0026-9000
Matthews, Carolyn L. (Kansas)
EE-KS-0026-9000
McClellan, Charles E (Kansas)
EE-KS-0026-9000
Rhodes, Forrest T. (Kansas)
EE-KS-0026-9000
Shulda, Teresa L (Kansas)
EE-KS-0026-9000
Stanley, Douglas L. (Kansas)
EE-KS-0026-9000
Tedesco, Todd N. (Kansas)
EE-KS-0026-9000
Thelen, Trisha A (Kansas)
EE-KS-0026-9000
Watson, Charles E II (Kansas)
EE-KS-0026-9000
Other Lawyers None on record

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