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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) Disability Rights-Pub. Accom.
Equal Employment
Special Collection Post-WalMart decisions on class certification
Case Summary
On December 19, 2005, former employees of the Boeing Company filed this class action in the United States District Court of Kansas against Boeing, Spirit Aerosystems Inc., the Onex Corporation, and Midwestern Aircraft. The employees alleged violations of various laws during the layoff and rehire ... read more >
On December 19, 2005, former employees of the Boeing Company filed this class action in the United States District Court of Kansas against Boeing, Spirit Aerosystems Inc., the Onex Corporation, and Midwestern Aircraft. The employees alleged violations of various laws during the layoff and rehire process that took place 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 terminated 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), the Employee Retirement Income Security Act (ERISA), the Older Workers Benefit Protection Act (OWBPA), the Labor Management Relations Act (LMRA), Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA). The plaintiffs sought declaratory, injunctive, and monetary relief, and 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. 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 the only co-defendants. And 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 in part and dismissed the plaintiffs' recordkeeping and OWBPA claims.

The defendants moved for partial summary judgment; on October 30, 2007, the Court found that the plaintiffs failed to exhaust their administrative remedies and dismissed both the ADEA claim stemming from conduct that occurred prior to January 1, 2005 and the retaliation claim. 2007 WL 3231526. Because 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 the 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 discovery 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, while claims against Boeing and Spirit remained. 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.

The defendants moved for summary judgment on the plaintiffs' remaining claims and asked the Court to decertify the 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. 722 F. Supp. 2d 1218. The Court found that the statistical disparities in the experts' reports were not significant enough to suggest an inference of discrimination in this case. And by this point, the plaintiffs' motion for class certification was moot. The plaintiffs filed a motion for reconsideration and asked the Court for additional time for discovery, which was denied on March 28, 2011. 2011 WL 1118835 (D. Kan. Mar. 28, 2011). The only claim remaining 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 Tenth Circuit, which affirmed the lower court's decision. 691 F.3d 1184 (10th Cir. 2012).

On December 6, 2012, the plaintiffs requested an order to determine whether the single file rule applied based on this Court's decision and subsequent affirmation by the Tenth Circuit, determine the date that the statute of limitations began to run again, and toll that date by 90 days after the Court's ruling. Both parties jointly filed a motion to sever the pro se plaintiffs for their individual ADEA claims of disparate treatment, which was granted by the Court on January 10, 2013. Those who did not pursue their individual claims against the defendants were subsequently dismissed.

On March 22, 2013, the remaining 87 plaintiffs filed a 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.

After the defendants requested a Bill of Costs, Magistrate Judge Humphreys ordered $50,425.49 in costs for the defendants on August 26, 2013. The plaintiffs appealed this estimate on September 24, 2013 while the parties continued to litigate over the ADEA violation.

On December 9, 2013, Judge Melgren denied the plaintiff's motion for the single file rule and to toll the date on the statute of limitations. 2013 WL 6440229. The plaintiffs appealed the order on January 7, 2014. During discovery disputes that followed, a number of individual plaintiffs settled with defendants and were subsequently dismissed.

On June 20, 2014, the defendants filed a motion to dismiss. On July 11, 2014, the remaining plaintiffs appealed the order for costs granted for the defendants. Judge Melgren held a hearing on the motion to dismiss on October 22, 2015, and the plaintiffs failed to appear at the hearing. On January 7, 2015, Judge Melgran denied the motion on costs and granted the motion to dismiss on the grounds that the remaining 26 plaintiffs had repeatedly failed to comply with discovery requests or adequately participate in the proceedings; the court had warned that if they continued to fail to comply, the case would be dismissed. 2015 WL 93653.

On February 9, 2015, the plaintiffs appealed the dismissal to the Tenth Circuit. However, this appeal was not filed timely and the plaintiffs were forced to file a motion allowing a late appeal citing a personal emergency. On April 8, 2015, Judge Melgran denied the motion because the plaintiffs had consistently demonstrated a lack of interest in the case and had not adequately pled reason for the late filing. 2015 WL 1549107. The plaintiffs appealed the motion on April 17, 2015. On June 3rd, the court ordered that the plaintiffs also file an appeal of the dismissal of the February 9th appeal within ten days of the order. When the plaintiffs failed to do so, the appeal was dismissed on June 16, 2015 for failure to prosecute. The case is now closed.

Matthew Aibel - 05/06/2008
Emma Bao - 07/29/2013
Carter Powers Beggs - 10/30/2019

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Issues and Causes of Action
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disability, unspecified
Discharge / Constructive Discharge / Layoff
Pay / Benefits
Age discrimination
Disability (inc. reasonable accommodations)
Disparate Impact
Disparate Treatment
Pattern or Practice
Plaintiff Type
Private Plaintiff
Causes of Action Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq.
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001
Title VII (including PDA), 42 U.S.C. § 2000e
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.
Class action status sought Yes
Class action status granted Moot
Filed Pro Se Yes
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief Litigation
Filed 12/19/2005
Case Closing Year 2015
Case Ongoing No
Additional Resources
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6:05-cv-01368-EFM-KMH (D. Kan.)
EE-KS-0026-9000.pdf | Detail
Date: 08/14/2015
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint-Class Action [ECF# 1]
EE-KS-0026-0004.pdf | Detail
Date: 12/09/2005
Source: PACER [Public Access to Court Electronic Records]
Order conditionally certifying class [ECF# 118] (D. Kan.)
EE-KS-0026-0002.pdf | Detail
Date: 11/15/2006
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 139] (D. Kan.)
EE-KS-0026-0003.pdf | Detail
Date: 12/18/2006
Source: PACER [Public Access to Court Electronic Records]
Order granting in part motion to compel (2007 WL 163201) (D. Kan.)
EE-KS-0026-0014.pdf | WESTLAW | Detail
Date: 01/18/2007
Order granting in part motion to compel interrogatories (2007 WL 3120712) (D. Kan.)
EE-KS-0026-0015.pdf | WESTLAW | Detail
Date: 10/24/2007
Order granting summary judgment (2007 WL 3231526) (D. Kan.)
EE-KS-0026-0016.pdf | WESTLAW | Detail
Date: 10/30/2007
Memorandum and Order [ECF# 233] (2008 WL 191418) (D. Kan.)
EE-KS-0026-0005.pdf | WESTLAW | Detail
Date: 01/22/2008
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 239] (D. Kan.)
EE-KS-0026-0006.pdf | Detail
Date: 05/21/2008
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 267] (2008 WL 5211001) (D. Kan.)
EE-KS-0026-0013.pdf | WESTLAW | Detail
Date: 12/09/2008
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 291] (D. Kan.)
EE-KS-0026-0007.pdf | Detail
Date: 07/02/2009
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 356] (722 F.Supp.2d 1218) (D. Kan.)
EE-KS-0026-0008.pdf | WESTLAW| LEXIS | Detail
Date: 06/30/2010
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 365] (2011 WL 1118835) (D. Kan.)
EE-KS-0026-0009.pdf | WESTLAW | Detail
Date: 03/28/2011
Source: PACER [Public Access to Court Electronic Records]
Nunc Pro Tunc Order [ECF# 385] (2011 WL 2690119) (D. Kan.)
EE-KS-0026-0010.pdf | WESTLAW | Detail
Date: 07/12/2011
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 406] (2012 WL 415458) (D. Kan.)
EE-KS-0026-0011.pdf | WESTLAW | Detail
Date: 02/09/2012
Source: PACER [Public Access to Court Electronic Records]
Judgment [Ct. of App. ECF# 416] (691 F.3d 1184)
EE-KS-0026-0012.pdf | WESTLAW| LEXIS | Detail
Date: 08/27/2012
Source: PACER [Public Access to Court Electronic Records]
Fifth Amended Complaint [ECF# 467]
EE-KS-0026-0001.pdf | Detail
Date: 03/22/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 545] (2015 WL 93653) (D. Kan.)
EE-KS-0026-0017.pdf | WESTLAW | Detail
Date: 01/06/2015
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Opinion [ECF# 558] (2015 WL 1549107) (D. Kan.)
EE-KS-0026-0018.pdf | WESTLAW | Detail
Date: 04/08/2015
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Belot, Monti L. (D. Kan.) show/hide docs
EE-KS-0026-0002 | EE-KS-0026-0003 | EE-KS-0026-0016
Humphreys, Karen M. (D. Kan.) [Magistrate] show/hide docs
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.) show/hide docs
EE-KS-0026-0007 | EE-KS-0026-0008 | EE-KS-0026-0009 | EE-KS-0026-0010 | EE-KS-0026-0017 | EE-KS-0026-0018 | EE-KS-0026-9000
Plaintiff's Lawyers Centeno, Monique K. (Kansas) show/hide docs
Gore, James E (Mississippi) show/hide docs
EE-KS-0026-0001 | EE-KS-0026-9000
McCausland, Paul S (Kansas) show/hide docs
Ohaebosim, Uzo L. (Kansas) show/hide docs
EE-KS-0026-0004 | EE-KS-0026-9000
Williamson, Lawrence W. Jr. (Kansas) show/hide docs
EE-KS-0026-0001 | EE-KS-0026-0004 | EE-KS-0026-9000
Defendant's Lawyers Armstrong, James M. (Kansas) show/hide docs
Counts, Sophie K. (Texas) show/hide docs
Matthews, Carolyn L. (Kansas) show/hide docs
McClellan, Charles E (Kansas) show/hide docs
Rhodes, Forrest T. (Kansas) show/hide docs
Shulda, Teresa L (Kansas) show/hide docs
Stanley, Douglas L. (Kansas) show/hide docs
Tedesco, Todd N. (Kansas) show/hide docs
Thelen, Trisha A (Kansas) show/hide docs
Watson, Charles E II (Kansas) show/hide docs

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