Case: Allen v. Sears, Roebuck and Co.

On April 17, 2007, former sales associates of Sears, Roebuck & Co. filed this class action lawsuit in the U.S. District Court for the Eastern District of Michigan under the Age Discrimination in Employment Act ("ADEA") against the company and Sears Home Improvement Products ("SHIP"), a wholly owned subsidiary. The plaintiffs, represented by private counsel, asked the court for damages and declaratory and injunctive relief, claiming that the company violated the ADEA when it transitioned the plaintiffs from their sales positions at Sears to inferior positions at SHIP. Specifically, the plaintiffs claimed that this transition had a disparate impact because it caused a disproportionate number of employees age forty and older to terminate their employment or be terminated.

Sears formed SHIP in 2001 in order to combine into a single corporation several home improvement companies it had acquired. Citing an interest in expanding its business, the company decided in 2004 to transition the Sears sales associates to SHIP, which the company claimed had one of the best business models in the country for selling home improvement goods. Under the transition plan, each employee was to be terminated by Sears and then hired by SHIP. The plaintiffs claimed, however, that Sears and SHIP offered drastically different compensation and benefits: after the transition, sales associates were no longer reimbursed for business expenses, they lost much of their paid time off, and they worked longer hours while covering a larger sales territory. The plaintiffs alleged that this transition caused many company employees above age 40 either to resign or be terminated.

On August 20, 2007, the Court (Judge George C. Steeh) denied the defendants' motion to transfer the case to the U.S. District Court for the Middle District of Florida, holding that they had failed to show that fairness and practicality strongly counseled in favor of such a transfer. Allen v. Sears Roebuck & Co., No. 07-11706, 2007 WL 2406921 (E.D. Mich. Aug. 20, 2007). In the same order, the Court denied without prejudice the defendants' motion to dismiss. It determined that the plaintiffs could still allege facts showing that the transition plan constituted an employment policy or practice sufficient to satisfy the first prong of a disparate impact claim.

After several months of discovery, on February 25, 2008, the Court (Judge Steeh) granted the defendants' motion to dismiss the disparate treatment age discrimination claim, although it permitted the plaintiffs to amend their complaint. Allen v. Sears Roebuck & Co., No. 07-11706, 2008 WL 544951 (E.D. Mich. Feb. 25, 2008). The plaintiffs had stated at a November 2007 scheduling conference that they would pursue discovery on a disparate treatment theory in addition to their disparate impact theory. The defendants filed this motion to prevent the plaintiffs from doing so, arguing that they could not raise the disparate treatment claim because that claim was not plead in the complaint. On March 11, 2008, the plaintiffs accepted the court's invitation and amended their complaint to include a count for disparate treatment under the ADEA. The parties then engaged in discovery for the next year.

On April 15, 2009, the Court (Judge Steeh) granted the plaintiffs' motion to conditionally certify a collective action. The defendants then argued that the Portal-to-Portal Act barred the claims of former sales associates who were not named as plaintiffs because the associates failed to file their written opt-in consents in time. The Court (Judge Steeh) rejected this argument in an order issued on January 20, 2010. Allen v. Sears Roebuck & Co., No. 07-11706, 2010 WL 259069 (E.D. Mich. Jan. 20, 2010). It invoked a judicial exception to the filing rule that allows an alleged victim of discrimination who failed to timely file a charge with the Equal Employment Opportunity Commission to "piggy back" on the charge of a plaintiff who did timely file. Because the Court determined that the timely filed claims in this case provided sufficient notice to the defendants that the claims were brought on behalf of all class members, it denied the defendants' motion to dismiss the claims that were not timely filed.

The Court (Judge David M. Lawson) issued an order on July 23, 2010, setting a time and date for a facilitative mediation. The parties failed to reach an agreement, however, and on August 30, 2010, the defendants filed a motion for summary judgment. The Court (Judge Steeh) granted the motion and dismissed the plaintiffs' complaint in its entirety on March 10, 2011. Allen v. Sears Roebuck & Co., 803 F. Supp. 2d 690 (E.D. Mich. 2011). In the order, the Court separately analyzed the disparate impact and disparate treatment claims. It explained that the disparate impact claim failed for three reasons: the plaintiffs did not identify a facially neutral practice or policy, they failed to provide statistical evidence that the defendants' decision to eliminate reimbursement and paid time off disproportionately impacted older workers, and the defendants demonstrated that the transition and the related policy decisions were based on reasonable factors other than age, a full affirmative defense to a disparate impact claim. As for the disparate treatment claim, the Court held that this claim failed because none of the plaintiffs experienced an adverse employment action and because the defendants provided legitimate nondiscriminatory reasons for the transition and the decisions executing it.

After entering judgment for the defendants, the Court also terminated the case on March 10, 2011.