UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Transcription

1 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 1 of 43 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Elizabeth McLeod, Heidi O Sullivan, Sherri Slocum, Ivette Harper, Robert West, Kevin Stemwell, Stephen Miller, Peggy Maxe, Karalyn Littlefield, Colleen Friedrichs, Arlene Hornilla, Marilyn Epp, Dwight Sevaldson, and Ann Carlson, for and in behalf of themselves and other persons similarly situated, Plaintiffs, Case No. COMPLAINT Jury Trial Demanded v. General Mills, Inc., Defendant. Plaintiffs Elizabeth McLeod, Heidi O Sullivan, Sherri Slocum, Ivette Harper, Robert West, Kevin Stemwell, Stephen Miller, Peggy Maxe, Karalyn Littlefield, Colleen Friedrichs, Arlene Hornilla, Marilyn Epp, Dwight Sevaldson, and Ann Carlson (collectively, Plaintiffs ), for themselves and on behalf of other persons similarly situated, as and for their Complaint against Defendant General Mills, Inc. ( General Mills ), through their undersigned counsel, state and allege as follows: OVERVIEW 1. This pattern or practice age discrimination action case presents the issue of whether employees can knowingly and voluntarily waive federal Age Discrimination in Employment Act (ADEA) claims and their rights to a jury trial and to proceed 1

2 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 2 of 43 collectively with other similarly situated persons if their former employer secured a purported waiver of those claims and rights without complying with the minimum requirements of the Older Workers Benefit Protection Act (OWBPA). 2. In June 2012, General Mills announced a mass layoff of about 850 employees. The layoffs resulted from a companywide initiative called Project Refuel. 3. Approximately half of those persons who lost their jobs as a result of General Mills Project Refuel were based in the Twin Cities. Concurrently with the terminations, General Mills was hiring and promoting younger employees to replace the Plaintiffs and other employees similarly situated whom General Mills terminated as part of Project Refuel. 4. The Project Refuel terminations, as discussed more fully below, adversely affected employees age 40 or over at much higher rates than younger employees. In this action, fourteen persons who were employed with General Mills in the Twin Cities as of June 1, 2012, and who were involuntarily terminated from employment later that year as part of the Project Refuel program, assert claims for intentional and disparate impact age discrimination against General Mills under the Age Discrimination in Employment Act of 1967 ( ADEA ), 29 U.S.C. 621, et seq., both in behalf of themselves as well in behalf of other employees similarly situated. 5. General Mills informed employees terminated as part of Project Refuel that, to receive any severance pay, they were required to sign and return a Release Agreement form, drafted by General Mills, which was the same or essentially the same for all terminated employees. 2

3 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 3 of In connection with its request that terminated employees execute its Release Agreement form, General Mills provided Project Refuel terminated employees who were age 40 or over with certain information about the job titles and ages of some employees terminated and retained as part of that program. General Mills did not, however, provide individual employees with disclosures that provided information about the full scope of the Project Refuel termination program, and instead provided each with only a portion of that information. When the partial data given to various terminated employees is aggregated, it shows that employees age 40 and over were terminated at exceptionally higher rates than younger employees, and that the risk of involuntary termination as part of Project Refuel increased dramatically with increased age. 7. The General Mills-produced data about its 2012 Project Refuel employee terminations, when combined, shows the exceptionally strong correlation between higher age and increased risk of termination. A statistical p-value calculation performed on the data to ascertain the likelihood that this correlation between age and rates of termination could have occurred if age (or a factor closely-related to age) were not used in making the termination selection decisions generates a very tiny p-value of only , whereas any p-value smaller than 0.05 is deemed to be statistically significant and any p-value smaller than 0.01 is deemed to be highly statistically significant by professional statisticians. 8. The Release Agreement form that General Mills required employees to sign as a condition of receipt of severance pay, and which was later signed by the abovenamed Plaintiffs, includes one paragraph that sets forth a broad release by the employee 3

4 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 4 of 43 of causes of action and claims against General Mills. Another paragraph on the same page in the same agreement states that the employee agrees that any dispute or claim arising out of or relating to the above release of claims, including, without limitation, any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release, will be resolved exclusively through a final and binding arbitration on an individual basis and not in any form of class, collective or representative proceeding. This latter paragraph thus purports to waive two important rights granted to employees under the ADEA: the right to a trial by jury on disputed issues of fact related to their claims for age discrimination and the right to proceed collectively in one action with others who are similarly situated. 9. Unlike other U.S. anti-discrimination statutes, the ADEA, through a 1990 amendment known as the Older Workers Benefit Protection Act ( OWBPA ), provides in plain language that [a]n individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary (emphasis added), and the ADEA sets out mandatory minimum requirements that must be satisfied for a waiver of any right or claim under the ADEA to knowing and voluntary. 29 U.S.C. 626(f). 10. In this case, in addition to asserting claims for age discrimination under federal law as referenced above, the above-named Plaintiffs, in behalf of themselves and others similarly situated, seek declaratory relief from the Court. In particular, Plaintiffs seek a declaration that, in connection with its Project Refuel Termination Program, General Mills failed to satisfy the mandatory minimum statutory requirements for an employer to obtain from a discharged employee a knowing and voluntary waiver of 4

5 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 5 of 43 any right or claim under the ADEA and that, as a result, the Release Agreement signed by all of the above-named Plaintiffs and by other similarly situated persons was and is not knowing and voluntary under the ADEA and thus was and is ineffective as a matter of law to waive any right or claim of any such individual under the ADEA, including the rights to a jury trial and to proceed collectively in pursuing relief under the ADEA. 11. If there is any dispute of fact related to whether General Mills can meet its affirmative burden to prove that the Release Agreement forms signed by the Plaintiffs and others similarly situated are knowing and voluntary, and thus whether they could constitute valid waivers of any right or claim under the ADEA of the employees who signed them, Plaintiffs demand a jury trial on such issues. The right to a jury trial on issues of fact relating to the validity or lack thereof of what is alleged to be a binding agreement to arbitrate is specifically provided for in the U.S. Federal Arbitration Act, 9 U.S.C. 1, et seq. ( FAA ). The FAA states that when a party aggrieved by the alleged failure of another party to arbitrate under a written agreement for arbitration brings a petition to compel arbitration, and when there is a dispute about the making of the arbitration agreement, if the party opposing arbitration demands a jury trial, upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure or may specially call a jury for that purpose. 9 U.S.C. 4. The statute further provides that arbitration will not be compelled [i]f the jury find that no agreement in writing for arbitration was made. 5

6 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 6 of While it may be the case for employees who signed it that the General Mills Release Agreement form constitutes a valid waiver of rights or claims of other types, the Release Agreements signed by the above-named Plaintiffs and others similarly situated were not knowing and voluntary under the ADEA because General Mills did not satisfy the minimum knowing and voluntary requirements set forth in 29 U.S.C. 626(f) and in related regulations, and were thus ineffective as a matter of law to waive or impair any right or claim under the ADEA of any such person who signed it. PARTIES AND JURISDICTION 13. Plaintiff Elizabeth McLeod ( McLeod ), who resides in Elk River, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated McLeod s employment in 2012 as part of its Project Refuel. McLeod was then age Plaintiff Heidi O Sullivan ( O Sullivan ), who resides in Plymouth, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated O Sullivan s employment in 2012 as part of its Project Refuel. O Sullivan was then age Plaintiff Sherri Slocum ( Slocum ), who resides in Plymouth, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Slocum s employment in 2012 as part of its Project Refuel. Slocum was then age Plaintiff Ivette Harper ( Harper ), who resides in Fridley, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Harper s employment in 2012 as part of its Project Refuel. Harper was then age 44. 6

7 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 7 of Plaintiff Robert West ( West ), who resides in Ramsey, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated West s employment in 2012 as part of its Project Refuel. West was then age Plaintiff Kevin Stemwell ( Stemwell ), who resides in Plymouth, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Stemwell s employment in 2012 as part of its Project Refuel. Stemwell was then age Plaintiff Stephen Miller ( Miller ), who resides in Burnsville, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Miller s employment in 2012 as part of its Project Refuel. Miller was then age Plaintiff Peggy Maxe ( Maxe ), who resides in Mound, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Maxe s employment in 2012 as part of its Project Refuel. Maxe was then age Plaintiff Karalyn Littlefield ( Littlefield ), who resides in Turtle Lake, Wisconsin, was previously employed by General Mills. General Mills involuntarily terminated Littlefield s employment in 2012 as part of its Project Refuel. Littlefield was then age Plaintiff Colleen Friedrichs ( Friedrichs ), who resides in St. Louis Park, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Friedrichs employment in 2012 as part of its Project Refuel. Friedrichs was then age 62. 7

8 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 8 of Plaintiff Arlene Hornilla ( Hornilla ), who resides in St. Paul, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Hornilla s employment in 2012 as part of its Project Refuel. Hornilla was then age Plaintiff Marilyn Epp ( Epp ), who resides in Andover, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Epps employment in 2012 as part of its Project Refuel. Epp was then age Plaintiff Dwight Sevaldson ( Sevaldson ), who resides in Prior Lake, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Sevaldson s employment in 2012 as part of its Project Refuel. Sevaldson was then age Plaintiff Ann Carlson ( Carlson ), who resides in Lino Lakes, Minnesota, was previously employed by General Mills. General Mills involuntarily terminated Carlson s employment in 2012 as part of its Project Refuel. Carlson was then age Defendant General Mills, Inc., is a Minnesota corporation with its headquarters located at 1 General Mills Boulevard, Golden Valley, Minnesota General Mills is an employer within the meaning of that term as defined in the ADEA. 29. The above-named Plaintiffs are similarly situated to one another in that each was employed by General Mills in 2012 in the Twin Cities area in a full-time job and was then age 40 or over, each was performing his/her job satisfactorily and was not then subject to termination for any performance-related reason, and General Mills involuntarily terminated each from employment in 2012 as part of a pattern or practice of 8

9 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 9 of 43 age discrimination carried out under its corporate-wide initiative Project Refuel. The Plaintiffs are also similarly situated to one another because General Mills asked each one to sign the same Release Agreement form. The above-named Plaintiffs bring this action under the ADEA, 29 U.S.C. 621, et seq., for and in behalf of themselves and other persons similarly situated who may later opt in to the action. 30. Because this action arises under the ADEA, 29 U.S.C. 621, et seq., jurisdiction is proper under 28 U.S.C FACTS ADEA: Rights and Claims 31. The ADEA mandates that it is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s age, and also unlawful to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual s age. 29 U.S.C. 623(a). 32. In the ADEA, Congress provided that [a]ny person aggrieved by a violation of the statute may bring a civil action in a court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter, 29 U.S.C. 626(c)(1), and further directed that a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of 9

10 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 10 of 43 this chapter, regardless of whether equitable relief is sought by any party in such action. 29 U.S.C. 626(c)(2). 33. Congress also mandated that the ADEA is to be enforced in accordance with the powers, remedies, and procedures provided in, among others, Section 16(b) of the Fair Labor Standards Act of 1938, as amended. 29 U.S.C. 626(b). That section directs that aggrieved persons who are similarly situated are entitled to proceed together in one action. 29 U.S.C. 216(b). 34. The U.S. Supreme Court has held that, by incorporating 29 U.S.C. 216(b), the ADEA expressly authorizes employees to bring collective action age discrimination actions, in behalf of... themselves and other employees similarly situated. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1998) (quoting 29 U.S.C. 216(b)). The Sperling Court held: Congress has stated its policy that ADEA plaintiffs should have the opportunity to proceed collectively. A collective action allows age discrimination plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity. (Id. at 173.) 35. The ADEA was amended in 1990 with the passage of the Older Workers Benefits Protection Act ( OWBPA ), which is codified at 29 U.S.C. 626(f). Congress then declared that the OWBPA was adopted to ensure that older workers are not coerced or manipulated into waiving their rights to seek legal relief under the ADEA. S. Rep. No , at 4 (1990), reprinted in part in 1990 U.S.C.C.A.N. 1509,

11 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 11 of The OWBPA provides, An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary, and directs that a waiver may not be considered knowing and voluntary unless at a minimum it satisfies the requirements set forth at subsections (A) through (H) of 29 U.S.C. 626(f)(1). 29 U.S.C. 626(f)(1) (emphasis added). 37. The OWBPA mandates that [i]n any dispute that may arise over whether any of the requirements to obtain a knowing and voluntary waiver have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary. 29 U.S.C. 626(f)(3). 38. The U.S. Supreme Court has stated that: The OWBPA implements Congress policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word, and that [t]the OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427 (1998). In Oubre, the employee asserted a cause of action under the ADEA, and the Supreme Court held that her release can have no effect on her ADEA claim unless it complies with the OWBPA. Id. 39. An arbitration provision or jury trial waiver clause in an agreement between an employer and an employee that applies to ADEA claims reflects a waiver of the employee s right to a jury trial under the ADEA, and such a clause must satisfy the ADEA knowing and voluntary requirements for the jury trial waiver/arbitration clause to be valid. 11

12 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 12 of Among the mandatory minimum requirements to obtain a knowing and voluntary waiver of any right or claim under the ADEA is that the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate. 29 U.S.C. 626(f)(1)(A). 41. Also, if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, which occurred here with the General Mills Project Refuel terminations, to obtain a knowing and voluntary waiver, the employer must inform the the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to (i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and (ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. (29 U.S.C. 626(f)(1)(H).) 42. The purpose of these informational requirements is to provide an employee with enough information regarding the program to allow the employee to make an informed choice whether or not to sign a waiver agreement. 29 C.F.R (f)(1)(iv). 12

13 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 13 of An employer s failure to provide persons age 40 or over who are asked to sign a waiver with an accurate OWBPA disclosure renders the purported waiver ineffective with respect to claims and rights under the ADEA. 44. In the ADEA, Congress expressly delegated to the U.S. Equal Employment Opportunity Commission ( EEOC ) authority to issue such rules and regulations as it may consider necessary or appropriate for carrying out this chapter. 29 U.S.C The EEOC has since adopted regulations that further define and explain the minimum requirements set forth in 29 U.S.C. 626(f)(1) to obtain a knowing and voluntary waiver of any right or claim under the ADEA. These regulations are codified at 29 C.F.R & One of these regulations states, The waiver agreement must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals. 29 C.F.R (b)(4). A related section confirms that these standards apply to the information conveyed by the employer to employees affected by an exit incentive or other incentive termination program. 29 C.F.R (b)(5). 46. The OWBPA regulations mandate, No ADEA waiver agreement may impose any condition precedent, any penalty, or any other limitation adversely affecting any individual s right to challenge the agreement. 29 C.F.R (b). 47. Another OWBPA regulation adopted to provides, with respect to the content of disclosures provided to employees: In a termination of persons in several established and/or other established subcategories within a job category or job title, the information shall be 13

14 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 14 of 43 broken down by grade level or other subcategory (f)(4)(ii).) (29 C.F.R. 48. If an employer, as part of its normal operations, classifies its employees into established job levels yet fails to include job level information in an OWBPA disclosure, the disclosure fails to comply with the law and, as a result, any waivers obtained from employees who were given the defective disclosure are not knowing and voluntary under the ADEA. 49. The EEOC has recognized that the plain language of 29 U.S.C. 626(f)(3) manifests an intent to permit employees who have signed a purported waiver of ADEA rights or claims to sue his or her employer upon the belief that the waiver did not comply. 65 Fed. Reg , (Dec. 11, 2000). 50. A related regulation confirms that an employee who challenges whether a waiver agreement is knowing and voluntary under the ADEA is not required to tender back the consideration given for that agreement before filing either a lawsuit or charge of discrimination, and that [r]etention of consideration does not foreclose a challenge to any waiver agreement, nor does it constitute the ratification of any waiver agreement 29 C.F.R (a). General Mills Project Refuel and the 2012 Employee Terminations 51. General Mills is one of the better known businesses in the Twin Cities. Based in Golden Valley, Minnesota, General Mills develops, produces and markets some of the best-known food products in the U.S., including brands such Cheerios, Yoplait and Pillsbury. 14

15 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 15 of In the summer of 2012, General Mills announced a mass layoff of about 850 employees, approximately half of whom were based the Twin Cities area. The job cuts affected almost 8 percent of General Mills Twin Cities-based employees and about 2.4 percent of its global workforce. At the time General Mills announced the Project Refuel employee terminations, it said that the mass layoff was part of organizational changes that were affecting virtually every area of the company. 53. The Project Refuel employee terminations predominantly adversely affected employees age 40 or over while General Mills disproportionately retained younger employees. 54. While the Project Refuel terminations were occurring, General Mills posted notices for open positions in some of the same work groups from which employees were being terminated. General Mills filled many of these open positions with new hires who were younger than the terminated employees who had been performing those jobs. 55. General Mills directed some of the Plaintiffs, as well as others similarly situated who also were discharged as part of Project Refuel, to train their younger replacements. 56. Upon information and belief, as part of its pattern or practice of age discrimination, General Mills classified employees using 9-box system to rate or rank employees based on highly subjective criteria, such as potential. It is believed that this system adversely affected older employees who tended to receive lower scores on subjective criteria such as potential despite strong job performance. 15

16 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 16 of As part of its pattern or practice of age discrimination, General Mills discriminated against employees age 40 or over in terminations and hiring, and also with respect to job assignments, such as by assigning younger employees to favorable positions. For example, after General Mills discharged Plaintiff Robert West and a coworker of his who was in his sixties in age in connection with Project Refuel, General Mills hired a former apprentice who had worked with Mr. West, who was then in his twenties in age, to replace West in his former position. West promptly submitted a written complaint to General Mills Human Resources Department about what he perceived as General Mills giving preferential treatment to the younger employee, but General Mills never responded to West s complaint. To the best of West s knowledge, General Mills appointed his the younger replacement to perform most if not all of West s former duties when he was employed with General Mills. 58. As part of its pattern or practice of age discrimination related to Project Refuel, General Mills also failed to consider its employees age 40 or over for employment opportunities, has refused to transfer employees age 40 or over into open positions for which they were qualified, and has refused to re-hire its former employees for positions for which they applied and were well qualified. For example, Plaintiff O Sullivan observed that her work group at General Mills was populated with younger employees. O Sullivan was told by one of her managers at General Mills that she needed to keep up with [her] juniors. O Sullivan was also told by a General Mills manager you are older and that the other employees in the Totino s R&D work group in which O Sullivan was employed did not see O Sullivan as part of the group. 16

17 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 17 of It is believed that General Mills pattern of age-based terminations is continuing. In December 2014, in a manner similar to 2012, General Mills announced that hundreds of additional employees were being terminated as part of a companywide program known as Project Catalyst. Upon information and belief, General Mills data provided to terminated employees again shows that the terminations are adversely affecting employees age 40 or over at much higher rates than younger employees. Also, upon information and belief, as with Project Refuel, in the Project Catalyst employee terminations, General Mills has informed terminated employees that they are ineligible for any severance pay, despite their years of service, unless they sign and return a General Mills Release Agreement form. General Mills Release Agreement 60. In connection with its Project Refuel, General Mills informed terminated employees (including each of the above-named Plaintiffs and other employees similarly situated) that they were ineligible to receive any severance pay unless they signed and returned the General Mills Release Agreement form. That form, in its second paragraph, states that the employee who signs the document releases all causes of action and claims against the company (including any claims under the ADEA). In the fourth paragraph of the form, the form states that the employee agrees that any dispute or claim arising out of or relating to the above release of claims, including, without limitation, any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release, will be resolved exclusively through a final and binding arbitration on an individual basis and not in any form of class, 17

18 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 18 of 43 collective or representative proceeding. This clause thus purports to waive two important rights granted to employees under the ADEA, the right to a jury trial on disputed issues of fact and the right to proceed collectively in one action with others who are similarly situated. 61. In seeking to secure signatures on its Release Agreement, General Mills provided the Plaintiffs and others similarly situated with misleading and inaccurate information. 62. Although these Plaintiffs and other similarly situated persons were notified of their terminations as part of the same company-wide Project Refuel group termination program, General Mills provided each of them with an OWBPA disclosure that purported to provide partial information about only one of what General Mills called a function or division of its organization. 63. While the limited disclosures provided by General Mills to these Plaintiffs and other similarly situated persons each independently reflects the same age bias in selections, General Mills did not disclose to any individual terminee that its pattern of age-based selections was pervasive company-wide across the entire Project Refuel program and infected every individual function. 64. For some or all of the Plaintiffs and others similarly situated, General Mills provided them with disclosures that, even for the limited group that they purported to cover, were inaccurate. 65. As a regular practice prior to the Project Refuel employee terminations, General Mills classified its employees into various job levels and regularly maintained 18

19 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 19 of 43 a variety of information about employee job levels. The Project Refuel employee terminations adversely affected employees across multiple job levels. Even so, in the informational disclosures General Mills provided to employees who were asked to sign the Release Agreement form, General Mills did not provide any information about the job levels of employees whose job titles and ages were included in the disclosures. 66. The General Mills Release Agreement form sought to impose limitations on an individual s right to challenge that agreement, including that the employee may do so only on an individual basis, and also that any such dispute would be resolved only in binding arbitration conducted pursuant to a set of specified arbitration rules. Statistical Evidence of Age Discrimination 67. The General Mills Project Refuel disclosures given to terminated employees demonstrate the significant statistical correlation between higher age and greater risk of termination in the Project Refuel employee termination program. The data provided in OWBPA disclosures shows that older employees had a far greater chance of being terminated than did younger employees during the Project Refuel restructuring. 68. For 508 terminations out of 6196 employees on General Mills disclosures for ten functions, aggregated, those employees age 40 and more were terminated at a rate of 12.4% whereas those under age 40 were terminated at a rate of only 3.0%. The termination rate for older employees in these functions therefore was more than 4 times higher than the termination rate for younger employees. 19

20 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 20 of The rates of termination in the Project Refuel reorganization increased by steps with age i.e., the older each employee was, the greater his/her risk of being terminated: 70. Utilizing the OWBPA data provided by General Mills for ten functions, combined, a p-value can be calculated to ascertain the chance that this correlation between age and rates of termination could have occurred if age were not used as a factor in the termination selections. The p-value for the combined OWBPA data set for Project Refuel is only , calculated by the Fisher exact test. This almost infinitesimally small p-value can be written as 8.6 X

21 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 21 of Professional statisticians consider p-values smaller than 0.05 to be statistically significant and p-values smaller than 0.01 to be highly statistically significant. 72. For comparison, the chance that General Mills could have randomly ended up with this pattern of employee age and terminations if age (or a factor closely correlated with age) were not used in its termination decisions for Project Refuel is about 1,000,000,000,000,000,000 times smaller than the chance that, if two persons each randomly picked a single gram (i.e., the mass of a dime) out of all of the 6 X grams of the earth s volume, they would both just happen to pick the same gram. 73. Each disclosure provided by General Mills for a portion of a separate function shows the same age-based bias in selections. Each disclosure with its partial termination data for a single function shows that older employees were selected for termination at disproportionately higher rates. 74. For the 127 terminations out of 1453 employees included on General Mills Project Refuel disclosure for the ITQ function, those employees age 40 and more were terminated at a rate of 14.3% whereas those under age 40 were terminated at a rate of only 2.2%. 75. For the 126 terminations out of 1969 employees included on General Mills disclosure for the Supply Chain function, those employees age 40 and more were terminated at a rate of 9.3% whereas those under age 40 were terminated at a rate of only 2.2%. 21

22 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 22 of For the 80 terminations out of 703 employees included on General Mills disclosure for the Information Systems function, those employees age 40 and more were terminated at a rate of 15.2% whereas those under age 40 were terminated at a rate of only 5.0%. 77. For the 44 terminations out of 450 employees included on General Mills disclosure for the Bakeries and Foodservice function, those employees age 40 and more were terminated at a rate of 12.8% whereas those under age 40 were terminated at a rate of only 5.1%. 78. For the 28 terminations out of 225 employees included on General Mills disclosure for the Gcom function, those employees age 40 and more were terminated at a rate of 22.5% whereas those under age 40 were terminated at a rate of only 5.9%. 79. For the 26 terminations out of 333 employees included on General Mills disclosure for the HR function, those employees age 40 and more were terminated at a rate of 12.0% whereas those under age 40 were terminated at a rate of only 3.6%. 80. For the 16 terminations out of 123 employees included on General Mills disclosure for the Facilities, Real Estate and Global Shared Service function, those employees age 40 and more were terminated at a rate of 16.7% whereas those under age 40 were terminated at a rate of only 3.0%. 81. For the six terminations out of 81 employees included on General Mills disclosure for the Law function, those employees age 40 and more were terminated at a rate of 9.8% whereas those under age 40 were terminated at a rate of only 3.3%. 22

23 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 23 of 43 Circumstances of the Named Plaintiffs Elizabeth McLeod 82. Plaintiff Elizabeth McLeod began employment with Pillsbury Inc. in General Mills acquired Pillsbury in 2001 and McLeod then became a General Mills employee. 83. In 2012, McLeod was employed by General Mills as a Building Coordinator. McLeod was well qualified for this position and performed her job duties in a competent manner. 84. General Mills notified McLeod of the termination of her employment in June 2012 as part of Project Refuel, when McLeod was 59 years old. 85. General Mills replaced McLeod with a younger person or reassigned some or all of her former duties to a younger employee. Heidi O Sullivan 86. Plaintiff Heidi O Sullivan began employment with Pillsbury in or about 1982 as a Food Technician. O Sullivan voluntarily left Pillsbury in 1988 to pursue advanced degrees in Food Science. In 1996, she earned a Ph.D. degree from the University of Minnesota. 87. O Sullivan began employment with General Mills in 1996 as a Scientist II. 88. In 2012, O Sullivan held a position with General Mills as a Senior Scientist II in the Totino s R&D Group. O Sullivan was well qualified for this position and performed her job duties in a satisfactory and competent manner. 23

24 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 24 of General Mills notified O Sullivan of the termination of her employment in in June 2012 as part of Project Refuel, when O Sullivan was 49 years old. At that time, O Sullivan understood she was the oldest of the scientists and engineers in the Totino s R&D Group. 90. After O Sullivan s discharge, she understands that General Mills replaced her job functions by assigning them to an employee in his mid-30s in age. Sherri Slocum 91. Plaintiff Sherri Slocum began employment with Pillsbury in 1990 as a Project Manager in its Haagen-Daz ice cream division. General Mills acquired Pillsbury in 2001 and Slocum then became a General Mills employee. 92. In 2012, Slocum was employed by General Mills as a Principal Scientist in the G-Tech Group. Slocum was well qualified for this position and performed her job duties in a satisfactory and competent manner. 93. General Mills notified Slocum of the termination of her employment in June 2012 as part of Project Refuel, when Slocum was 51 years old. 94. About six months prior to her discharge, General Mills created a small group of employees within the department in which Slocum was employed, which it called the Focused Research Group, and it transferred Slocum and approximately six other employees into that group. Almost all of the employees who General Mills transferred into that group were in their fifties or sixties in age at that time. Many of the duties of the members of this group did not change at all after this assignment and, at the time, Slocum was unsure about why the group had been created. In June 2012, when 24

25 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 25 of 43 General Mills terminated Slocum, it also terminated multiple other members of this group as part of Project Refuel. 95. To the best of her knowledge, General Mills replaced Slocum with a younger employee, who appeared to be in her 30s in age. During her last week of employment with General Mills, General Mills directed Slocum to conduct a knowledge transfer to this younger employee. Slocum understands that this younger employee was subsequently assigned by General Mills to perform many of her former duties. Ivette Harper 96. Plaintiff Ivette Harper began employment with General Mills in July 1992 as a Nutrition Marketing Service Assistant. 97. In 2012, Harper was employed by General Mills as a Senior Scientist II at the Bell Institute of Health and Nutrition. Harper was well qualified for this position and performed her job duties in a satisfactory and competent manner. 98. General Mills notified Harper of the termination of her employment in June 2012, when Harper was 44 years old. 99. Despite the fact that Harper had received numerous excellent performance ratings while she was working for General Mills, at her discharge meeting, General Mills informed Harper that her position had been eliminated and that more qualified candidates had been chosen to fill available roles. Harper was later told by another manager that General Mills management gave the manager set criteria to use, one of which was flexibility to move to other teams. 25

26 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 26 of To the best of her knowledge, General Mills subsequently reassigned job duties that had been performed by Harper before her discharge to one or more younger employees. Robert West 101. Plaintiff Robert West began employment with Pillsbury in 1993 to work as a Maintenance Mechanic. General Mills acquired Pillsbury in 2001, and West then became a General Mills employee In 2012, West was employed by General Mills as Senior Facility Engineer. West was well qualified for his position and performed his job duties in a satisfactory and competent manner General Mills notified West of the termination of his employment as part of Project Refuel in June 2012, when West was 53 years old Following his discharge, General Mills replaced West with a person who was in his 20s in age, who had served as an apprentice to West prior to his discharge. Kevin Stemwell 105. Plaintiff Kevin Stemwell began employment with Gardetto s, Inc. in General Mills acquired Gardetto s in 1998, and Stemwell then became a General Mills employee In 2012, Stemwell was employed by General Mills as a Senior Analyst III. Stemwell was well qualified for this position and performed his job duties in a satisfactory and competent manner. 26

27 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 27 of General Mills notified Stemwell of the termination of his employment as part of Project Refuel in June 2012, when Stemwell was 54 years old Although General Mills informed Stemwell that his position had been eliminated, shortly after being notified of his termination, General Mills directed Stemwell to train a younger employee on how to perform his job duties. Stemwell understands that General Mills assigned most or all of his former job duties to that younger employee. Stephen Miller 109. Plaintiff Stephen Miller began employment with Pillsbury in September 2001, in its IT Department. General Mills acquired Pillsbury in Miller began employment with General Mills in December In 2012, Miller was employed by General Mills as a Network Security Analyst 3. Miller was well qualified for this position and performed his job duties in a satisfactory and competent manner General Mills notified Miller of the termination of his employment as part of Project Refuel in June 2012, when Miller was 61 years old Following Miller s discharge, General Mills assigned his job functions to at least one younger employee. Miller also learned that his former manager had hired another employee into his group and that the manager had posted a listing for an open position in the group. 27

28 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 28 of 43 Peggy Maxe 113. Plaintiff Peggy Maxe began employment with Pillsbury in General Mills acquired Pillsbury in 2001 and Maxe then became a General Mills employee In 2012, Maxe was employed by General Mills as a Trade Finance Analyst. Maxe was well qualified for this position and performed her job duties in a satisfactory and competent manner General Mills notified Maxe of her termination as a part of Project Refuel in June 2012, when Maxe was 42 years old Although General Mills informed Maxe that her position was being eliminated, within one week thereafter, General Mills posted a new organization chart for the same group that listed an open position as a Trade Finance Analyst, the same position held by Maxe After informing Maxe of her discharge, General Mills required Maxe to train a temporary employee about the work she had been doing. Maxe later learned, in December 2012, that General Mills had filled the open Trade Finance Analyst position with a younger employee who was late twenties or early thirties in age. Karalyn Littlefield 118. Plaintiff Karalyn Littlefield began employment with Lloyd s Barbecue in General Mills acquired Lloyd s Barbecue in January 1999, and Littlefield then became a General Mills employee In 2012, Littlefield was employed by General Mills as a Senior Research Food Scientist II. Littlefield was well qualified for this position and performed her job 28

29 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 29 of 43 duties in a satisfactory and competent manner. Littlefield received several awards for her performance at General Mills and also received a patent, which was issued in General Mills notified Littlefield of the termination of her employment as part of Project Refuel in June 2012, when Littlefield was 44 years old To the best of her knowledge, following her discharge, General Mills replaced Littlefield with a younger person or reassigned some or all of her former duties to a younger employee. Colleen Friedrichs 122. Plaintiff Colleen Friedrichs began her employment with General Mills in In 2012, Friedrichs was employed by General Mills as an Administrative Assistant. Friedrichs was well qualified for this position and performed her job duties in a proper and competent manner General Mills notified Friedrichs of the termination of her employment in June 2012, as part of Project Refuel General Mills subsequently replaced Friedrichs with a younger person or reassigned some or all of her former duties to a younger employee. Arlene Hornilla 126. Plaintiff Arlene Hornilla began employment with General Mills in 2003, as an attorney in the General Mills legal department. 29

30 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 30 of In 2012, Hornilla was employed by General Mills as Senior Patent Counsel. Hornilla was well qualified for this position and performed her job duties in a satisfactory and competent manner General Mills notified Hornilla of the termination of her employment in or about June 2012, as part of Project Refuel, when Hornilla was 46 years old At the time of her discharge, a General Mills vice president informed Hornilla that her position had been eliminated. This statement came as a surprise to Hornilla because, just months earlier, General Mills had requested that Hornilla s immediate supervisor, the company s Chief Patent Counsel, leave the company and enter a pre-retirement arrangement. In addition, Hornilla knew that General Mills had only recently hired a young person in his mid-30s in age into the patent law group To the best of her knowledge, prior to and in connection with her discharge, General Mills reassigned Hornilla s client responsibilities to one or more younger employees. Marilyn Epp 131. Plaintiff Marilyn Epp began employment with General Mills in 2004 as an Administrative Assistant and held a position of that type until her discharge in Epp was well qualified for her positions with General Mills and performed her job duties in a satisfactory and competent manner General Mills notified Epp of the termination of her employment as part of Project Refuel in June 2012, when Epp was 64 years old. Epp was then the oldest Administrative Assistant in her group. 30

31 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 31 of At the time of her discharge, Epp was told by a General Mills supervisor that her position had been eliminated and that a more qualified candidate would be chosen to fill that open role. At that time, Epp had observed that General Mills had multiple active open job postings for available administrative assistant positions Epp learned a short time later than a younger employee was going to be offered a position within her former department. Dwight Sevaldson 136. Plaintiff Dwight Sevaldson first became employed with General Mills in October 2006 as a Contract Operations Manager. Sevaldson held this position until June Sevaldson was well qualified for his position with General Mills and performed his job duties in a satisfactory and competent manner. Sevaldson received several awards for meritorious job performance from General Mills General Mills notified Sevaldson of the termination of his employment as part of Project Refuel in June 2012, when Sevaldson was 55 years old At that time, Sevaldson asked why he was being discharged, but the General Mills managers who met with him would not give him a direct answer. Instead, one of them asked Sevaldson whether he wanted General Mills to communicate that Sevaldson was retiring. Sevaldson objected. A few days later, another General Mills manager contacted Sevaldson and suggested that he consider agreeing to describe his termination as a retirement. Again, Sevaldson objected. 31

32 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 32 of 43 Ann Carlson 140. Plaintiff Ann Carlson began employment with General Mills in March 2010 in its Employee Benefits department In 2012, Carlson was employed by General Mills as a Senior Manager of Employee Benefits. Carlson was well qualified for this position and performed her job duties in a satisfactory and competent manner General Mills notified Carlson of the termination of her employment as part of Project Refuel in June 2012, when Carlson was 53 years old General Mills replaced Carlson with a much younger employee with far less experience whom General Mills hired within weeks after Carlson s last day of employment with General Mills. The opening for the vacant position created as a result of Carlson s discharge was first posted by General Mills within days after General Mills informed Carlson of her termination. Plaintiffs EEOC Charges 144. Following their terminations from employment with General Mills, each of the following listed persons, who are named Plaintiffs in this action, filed a class-wide administrative charge alleging age discrimination by General Mills in connection with Project Refuel with the U.S. Equal Employment Opportunity Commission ( EEOC ): Elizabeth McLeod, Heidi O Sullivan, Sherri Slocum, Ivette Harper, Robert West, Kevin Stemwell, Stephen Miller, Peggy Maxe, Karalyn Littlefield, Arlene Hornilla, Marilyn Epp, Dwight Sevaldson, and Ann Carlson. 32

33 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 33 of In their charges, the named Plaintiffs alleged, among other things: that General Mills engaged in a pattern or practice of age discrimination in connection with its Project Refuel; that they were involuntarily terminated from employment with General Mills as part of a pattern or practice of age discrimination; that General Mills misled the Plaintiffs and others similarly situated into signing the General Mills Release Agreement form by providing them with misleading, incomplete and inaccurate information; and, that the Release Agreement form signed by some of the named Plaintiffs and by others similarly situated does not contain an effective waiver of any right or claim under the ADEA because General Mills failed to comply with the mandatory requirements set forth in the OWBPA to obtain a knowing and voluntary waiver of any such right or claim Each of the 14 Plaintiffs named in the caption either timely filed a classwide administrative charge with the U.S. Equal Employment Opportunity Commission that alleges a pattern or practice of age discrimination by General Mills or is piggybacking on one or more timely-filed class-wide charges alleging age discrimination On information and belief, the EEOC has conducted a systemic investigation of the pattern or practice of age discrimination by General Mills because of the Plaintiffs charges. 33

34 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 34 of More than 60 days have passed since the above-referenced EEOC charges were filed Each of the 14 above-named Plaintiffs hereby consents to become a party Plaintiff in this action. COUNT ONE ADEA COLLECTIVE ACTION DECLARATORY JUDGMENT ADEA/OWBPA 150. Plaintiffs incorporate by reference the preceding paragraphs This is a collective action under 29 U.S.C. 626(b) and 29 U.S.C. 216(b) by the above-named Plaintiffs in behalf of themselves and other person similarly situated who may later opt into this action As described above, in connection with its Project Refuel, General Mills informed the named Plaintiffs and other employees similarly situated who were involuntarily terminated from employment that they would be ineligible to receive any separation or severance pay unless he/she signed and returned the General Mills Release Agreement form Under the OWBPA, no waiver agreement is effective with regard to any right or claim under the ADEA unless the agreement meets the statutory standards to be knowing and voluntary The Release Agreements signed by the named Plaintiffs and by other similarly situated persons were not knowing and voluntary as defined in the OWBPA and related regulations for one or more reasons, including because: 34

35 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 35 of 43 (i) they were not written in a manner calculated to be understood by the average recipient; (ii) General Mills did not provide the signatories with accurate and complete information about any class, unit, or group of individuals covered by the Project Refuel termination program, any eligibility factors for such program, and any time limits applicable to such program. For example, upon information and belief, General Mills assessment of the potential of employees was a factor used in making Project Refuel employee termination decisions, yet General Mills disclosures to affected employees do not identify this as an eligibility factor; (iii) General Mills did not provide the signatories with accurate and complete information about the job titles and ages of all individuals eligible or selected for the Project Refuel termination program, and the ages of all individuals in the same job classification or organizational unit who were not eligible or selected for the program. For example, although Project Refuel was a company-wide termination program, affected employees were not given company-wide informational disclosures. Moreover, even for the functions that General Mills purported to describe on disclosures given to affected employees, the disclosures by their terms provided only a partial set of information about that function, providing information about director level and below employees of the function, but not complete information about all employees within that alleged function; (iv) General Mills did not break down the informational disclosures given to affected employees by employee job level or provide affected employees with any information about the established job levels of the employees whose job title and ages were listed on the disclosures; (v) General Mills informational disclosures provided to affected employees failed to provide cumulative information about ongoing employee terminations at General Mills that preceded but were closely related to Project Refuel; and (vi) General Mills Release Agreement form sought to impose upon employees who signed it limitations on their right to challenge that agreement, including the limitation that an employee could do so only on an individual basis, and the further limitation that any such claim by an employee could be resolved only in binding arbitration conducted pursuant to a set of specified arbitration rules. 35

36 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 36 of With respect to each of the above-named Plaintiffs and other employees similarly situated who were age 40 or over and involuntarily terminated from employment by General Mills in connection with its Project Refuel, General Mills failed to satisfy one or more of the statutory mandatory minimum requirements to obtain a knowing and voluntary waiver of any right or claim under the ADEA. General Mills fraudulently induced the Plaintiffs and other persons similarly situated to sign the Release Agreement form by providing them with false, incomplete and/or misleading disclosures in connection with its request that employees sign that form. Accordingly, no purported waiver of any right or claim under the ADEA (including without limitation the rights to a jury trial and to proceed collectively in pursuing one s ADEA claims) contained in any such Release Agreement signed by any person age 40 or over who was terminated as part of Project Refuel is valid or effective as a matter of law If and to the extent that General Mills maintains that any purported waiver of any right or claim under the ADEA contained in a Release Agreement form signed by any of Plaintiffs (or by other similarly situated person who may hereafter opt in to this action) is effective, then the parties have an actual controversy, and the Court should issue declaratory relief confirming that the Release Agreement forms signed by such persons were not knowing and voluntary under the ADEA and therefore, as a matter of law, did not that waive or impair any right or claim under the ADEA. 36

37 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 37 of 43 COUNT TWO ADEA COLLECTIVE ACTION DISPARATE TREATMENT AGE DISCRIMINATION 157. Plaintiffs incorporate herein by reference all of the preceding paragraphs This is a collective action under 29 U.S.C. 626(b) & (c) and 29 U.S.C. 216(b) by the above-named Plaintiffs and other similarly situated persons who may subsequently opt into this action As set forth more fully above, General Mills engaged in an unlawful pattern or practice of age discrimination in connection with its Project Refuel employee terminations. The named Plaintiffs identified above and other similarly situated employees who were age 40 or over and who were involuntarily terminated from employment with General Mills in connection with its Project Refuel were victims of General Mills pattern or practice of age discrimination The aforesaid pattern or practice of age discrimination by General Mills was willful By engaging in an unlawful and willful pattern or practice of age discrimination in connection with its Project Refuel employee terminations as described herein, General Mills prevented the named Plaintiffs and other similarly situated employees from obtaining compensation and benefits that they otherwise would have earned and received As a direct and proximate result of the aforesaid unlawful and willful pattern or practice of age discrimination by General Mills in violation of the ADEA, each 37

38 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 38 of 43 of the Plaintiffs has suffered damages in an amount to be determined, including, but not limited to, lost salary, bonuses, and other compensation and lost retirement, insurance and other employee benefits The above-named Plaintiffs are each 40 years of age or older and are within the class of persons protected against age discrimination in employment by the ADEA The Plaintiffs are among those former employees of General Mills who have been adversely affected by the aforesaid pattern or practice of age discrimination Upon information and belief, the pattern or practice of age discrimination by General Mills is continuing. In late 2014, in a manner that appears quite similar to the Project Refuel terminations, General Mills announced a new wave of employee terminations. These terminations are referred to as the Project Catalyst terminations. As with Refuel, upon information and belief, the information given to the terminated employees about the Catalyst terminations reflects a similar pattern as with the Refuel, with older employees involuntarily terminated at much higher rates than younger ones. Upon information and belief, General Mills is again taking the approach of denying any separation pay or benefits to terminated employees unless they sign the General Mills Release Agreement form. Upon information and belief, the current version of that form is substantially similar to the form used with the Project Refuel terminations; it contains a release of claims as well as an arbitration clause and a class action waiver provision. 38

39 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 39 of 43 COUNT THREE INDIVIDUAL CLAIMS ADEA DISPARATE TREATMENT 166. Plaintiffs incorporate herein by reference the preceding above paragraphs General Mills discriminated against each of the above-named Plaintiffs, and against other similarly situated persons who may hereafter opt into this action, because of her/his age in willful violation of the ADEA by engaging in the aforesaid pattern or practice of age discrimination and by terminating her/his employment in As a direct and proximate result of General Mills unlawful and willful age discrimination, the named Plaintiffs and other persons similarly situated have suffered damages in an amount to be determined at trial, including, but not limited to, lost salary, bonuses, and other forms of compensation, lost retirement benefits, insurance benefits and other employee benefits. COUNT FOUR ADEA COLLECTIVE ACTION DISPARATE IMPACT 169. Plaintiffs incorporate herein by reference the preceding above paragraphs This is a collective action under 29 U.S.C. 626(b) & (c) and 29 U.S.C. 216(b) by the above-named Plaintiffs and other similarly situated persons who may subsequently opt into this action The ADEA provides that it is unlawful for an employer to: limit, segregate or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual s age. 29 U.S.C. 623(a)(1). 39

40 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 40 of Based on this provision, the U.S. Supreme Court has held that disparate impact claims may be asserted under the ADEA. Smith v. City of Jackson, 544 U.S. 228, 232 (2005). A disparate impact violation is established by evidence of a test, requirement or practice of the employer that has an adverse impact on older workers. Id. at As set forth more fully above, General Mills has utilized employment practices, including its 9-box practice for ranking or rating employees based on subjective criteria such as potential, which have disparately impacted the above-named Plaintiffs and other similarly situated persons The aforesaid age discrimination by General Mills was willful As a direct and proximate result of the aforesaid age discrimination by General Mills, each of the Plaintiffs and others similarly situated have suffered damages in an amount to be determined at trial, including, but not limited to, lost salary, bonuses, and other forms of compensation, lost retirement benefits, insurance benefits and other employee benefits, and damages for mental anguish and suffering. COUNT FIVE INDIVIDUAL CLAIMS ADEA DISPARATE IMPACT 176. Plaintiffs incorporate herein by reference the preceding paragraphs The ADEA provides that it is unlawful for an employer to: limit, segregate or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual s age. 29 U.S.C. 623(a)(1). 40

41 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 41 of Based on this provision, the U.S. Supreme Court has held that disparate impact claims may be asserted under the ADEA. Smith v. City of Jackson, 544 U.S. 228, 232 (2005). A disparate impact violation is established by evidence of a test, requirement or practice of the employer that has an adverse impact on older workers. Id. at As set forth more fully above, General Mills has utilized employment practices, including its 9-box practice for ranking or rating employees based on subjective criteria such as potential, which have disparately impacted the above-named Plaintiffs and other similarly situated persons The aforesaid age discrimination by General Mills was willful As a direct and proximate result of the aforesaid age discrimination by General Mills, each of the Plaintiffs and others similarly situated have suffered damages in an amount to be determined at trial, including, but not limited to, lost salary, bonuses, and other forms of compensation, lost retirement benefits, insurance benefits and other employee benefits. 41

42 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 42 of 43 WHEREFORE, the Plaintiffs request that the Court enter judgment in their favor and in favor of each other person who consents to be a party Plaintiff, and against General Mills, as follows: 1. Declaring that the purported waivers of rights or claims under the ADEA set forth in the General Mills Release Agreement obtained by General Mills from the above-named Plaintiffs and from other persons similarly situated are not knowing and voluntary under the ADEA and thus are ineffective as a matter of law to extinguish or impair any right or claim under the ADEA, including the rights to a jury trial and to proceed collectively in one action with other persons similarly situated; 2. Awarding each of the Plaintiffs and opt-in Plaintiffs back pay and benefits, together with interest thereon; 3. Reinstating the Plaintiffs and opt-in Plaintiffs to the positions they held when discharged or to comparable or otherwise mutually-acceptable positions or, in lieu of reinstatement, awarding each Plaintiff front pay and benefits for the period remaining until that person s expected retirement age; 4. Awarding each of the Plaintiffs and opt-in Plaintiffs liquidated damages pursuant to the ADEA in an amount equal to that person s back pay and benefits award, together with interest thereon; 5. Awarding Plaintiffs attorneys fees and costs pursuant to 29 U.S.C. 216(b) and 626(b); 6. Awarding Plaintiffs and opt-in Plaintiffs prejudgment interest and their costs and disbursements herein; and 42

43 CASE 0:15-cv JRT-HB Document 1 Filed 02/11/15 Page 43 of Awarding Plaintiffs and opt-in Plaintiffs such other and further relief as the Court deems appropriate. SNYDER & BRANDT, P.A. Dated: February 11, 2015 s/ Stephen J. Snyder Stephen J. Snyder (#103019) Craig A. Brandt (#214036) Brent C. Snyder (#034879X) 120 South Sixth Street, Suite 2550 Minneapolis, MN (612) (telephone) (612) (facsimile) ATTORNEYS FOR PLAINTIFFS 43

44 CASE 0:15-cv JRT-HB Document 1-1 Filed 02/11/15 Page 1 of 1