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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, v. General Mills, Inc., Defendant.
Case No. _____________
COMPLAINT
Jury Trial Demanded
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
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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.
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6. 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
0.0000000000000000000000000000000000000000000086, 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 above-
named Plaintiffs, includes one paragraph that sets forth a broad release by the employee
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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
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“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.”
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12. 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 59.
14. 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 49.
15. 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 51.
16. 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.
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17. 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 53.
18. 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 54.
19. 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 61.
20. 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 42.
21. 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 44.
22. 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.
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23. 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 46.
24. 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 64.
25. 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 55.
26. 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 53.
27. Defendant General Mills, Inc., is a Minnesota corporation with its
headquarters located at 1 General Mills Boulevard, Golden Valley, Minnesota 55426.
28. 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
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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. § 1331.
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
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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. 101-263, at 4 (1990), reprinted in part in 1990 U.S.C.C.A.N. 1509, 1510.
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36. 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.
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40. 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.
§ 1625.22(f)(1)(iv).
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43. 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. § 628.
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. §§ 1625.22 & 23.
45. 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. § 1625.22(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. § 1625.22(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. § 1625.23(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
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broken down by grade level or other subcategory. (29 C.F.R. § 12625.22(f)(4)(ii).)
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. 77438, 77443-44 (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. § 1625.23(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.
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52. 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.
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57. 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 co-
worker 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.”
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59. 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,
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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
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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.
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69. 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 0.0000000000000000000000000000000000000000000086, calculated by
the Fisher exact test. This almost infinitesimally small p-value can be written as 8.6 X
10-45.
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71. 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 1027 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%.
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76. 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%.
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Circumstances of the Named Plaintiffs
Elizabeth McLeod
82. Plaintiff Elizabeth McLeod began employment with Pillsbury Inc. in 1981.
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.
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89. 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
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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.”
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100. 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.
102. 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.
103. General Mills notified West of the termination of his employment as part of
Project Refuel in June 2012, when West was 53 years old.
104. 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 1995.
General Mills acquired Gardetto’s in 1998, and Stemwell then became a General Mills
employee.
106. 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.
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107. General Mills notified Stemwell of the termination of his employment as
part of Project Refuel in June 2012, when Stemwell was 54 years old.
108. 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 2001. Miller began
employment with General Mills in December 1996.
110. 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.
111. General Mills notified Miller of the termination of his employment as part
of Project Refuel in June 2012, when Miller was 61 years old.
112. 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.
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Peggy Maxe
113. Plaintiff Peggy Maxe began employment with Pillsbury in 1997. General
Mills acquired Pillsbury in 2001 and Maxe then became a General Mills employee.
114. 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.
115. General Mills notified Maxe of her termination as a part of Project Refuel
in June 2012, when Maxe was 42 years old.
116. 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.
117. 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
1998. General Mills acquired Lloyd’s Barbecue in January 1999, and Littlefield then
became a General Mills employee.
119. 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
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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 2012.
120. General Mills notified Littlefield of the termination of her employment as
part of Project Refuel in June 2012, when Littlefield was 44 years old.
121. 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
2002.
123. 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.
124. General Mills notified Friedrichs of the termination of her employment in
June 2012, as part of Project Refuel.
125. 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.
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127. 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.
128. 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.
129. 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.
130. 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 2012.
132. Epp was well qualified for her positions with General Mills and performed
her job duties in a satisfactory and competent manner.
133. 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.
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134. 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.
135. 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
2012.
137. 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.
138. General Mills notified Sevaldson of the termination of his employment as
part of Project Refuel in June 2012, when Sevaldson was 55 years old.
139. 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.
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Ann Carlson
140. Plaintiff Ann Carlson began employment with General Mills in March 2010
in its Employee Benefits department.
141. 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.
142. General Mills notified Carlson of the termination of her employment as part
of Project Refuel in June 2012, when Carlson was 53 years old.
143. 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.
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145. 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.”
146. Each of the 14 Plaintiffs named in the caption either timely filed a class-
wide 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.
147. 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.
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148. More than 60 days have passed since the above-referenced EEOC charges
were filed.
149. 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.
151. 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.
152. 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.
153. 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.”
154. 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:
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(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.
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155. 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.
156. 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.
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COUNT TWO
ADEA COLLECTIVE ACTION – DISPARATE TREATMENT AGE
DISCRIMINATION
157. Plaintiffs incorporate herein by reference all of the preceding paragraphs.
158. 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.
159. 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.
160. The aforesaid pattern or practice of age discrimination by General Mills
was willful.
161. 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.
162. 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
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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.
163. 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.
164. The Plaintiffs are among those former employees of General Mills who
have been adversely affected by the aforesaid pattern or practice of age discrimination.
165. 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.
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COUNT THREE
INDIVIDUAL CLAIMS – ADEA DISPARATE TREATMENT
166. Plaintiffs incorporate herein by reference the preceding above paragraphs.
167. 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 2012.
168. 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.
170. 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.
171. 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).
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172. 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 241.
173. 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.
174. The aforesaid age discrimination by General Mills was willful.
175. 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.
177. 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).
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178. 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 241.
179. 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.
180. The aforesaid age discrimination by General Mills was willful.
181. 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.
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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
CASE 0:15-cv-00494-JRT-HB Document 1 Filed 02/11/15 Page 42 of 43
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7. Awarding Plaintiffs and opt-in Plaintiffs such other and further relief as the
Court deems appropriate.
Dated: February 11, 2015
SNYDER & BRANDT, P.A. s/ Stephen J. Snyder Stephen J. Snyder (#103019) Craig A. Brandt (#214036) Brent C. Snyder (#034879X) 120 South Sixth Street, Suite 2550 Minneapolis, MN 55402 (612) 787-3100 (telephone) (612) 333-9116 (facsimile) ATTORNEYS FOR PLAINTIFFS
CASE 0:15-cv-00494-JRT-HB Document 1 Filed 02/11/15 Page 43 of 43
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