Massachusetts v. Bull Hn Information Systems, Civ. No. 97-11326-NG.

• Citation: 16 F.Supp.2d 90
• Decision Date: 07 August 1998
• Docket Number: Civ. No. 97-11326-NG.
• Parties: COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. BULL HN INFORMATION SYSTEMS, INC., Defendant.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

16 F.Supp.2d 90

COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. BULL HN INFORMATION SYSTEMS, INC., Defendant.

Civ. No. 97-11326-NG.

United States District Court, D. Massachusetts.

August 7, 1998.

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Catherine C. Ziehl, Attorney General's Office, Boston, MA, for Plaintiff.

Joan A. Luckey, Robyn B. Klinger, Michael G. Bongiorno, Karen Katz, Hale & Dorr, Boston, MA, for Defendant.

                TABLE OF CONTENTS
                I. BACKGROUND ....................................................................94
                II. DISCUSSION ...................................................................95
                    A. Standing ..................................................................96
                       1. Parens Patriae Standing ................................................96
                          a. Parens Patriae Generally ............................................96
                          b. Quasi-Sovereign Interests ...........................................96
                          c. Affected State Population: The "Substantial Segment" Test ...........98
                          d. The Availability of Private Relief .................................101
                          e. Conclusion .........................................................102
                       2. EEOC's Parallel Lawsuit ...............................................102
                       3. Article III and Statutory Limitations .................................103
                       4. The Requirement of Named Individuals ..................................103
                    B. Procedural Requirements of the OWBPA .....................................104
                    C. Failure to State a Claim upon which Relief can be Granted ................105
                       1. The Commonwealth's OWBPA Action .......................................105
                       2. The Sears Line of Cases ...............................................106
                       3. Counts I, IV, and V ...................................................107
                          a. Count I: OWBPA § 626(f)(4): Interference with Right to File a
                             Charge with the Commission .........................................107
                          b. Count IV: Unlawful Employment Practices under the ADEA
                             § 623(a) ......................................................108
                          c. Count V: Retaliation under ADEA § 623(d) ......................108
                             (1) "Threatening" Retaliation ......................................108
                             (2) Enforcement of Waivers as Retaliation ..........................109
                       4. Conclusion ............................................................110
                III. CONCLUSION .................................................................110
                

MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO DISMISS

GERTNER, District Judge.

The Commonwealth of Massachusetts ("the Commonwealth") filed this age discrimination action on June 12, 1997, asserting five counts under the Older Workers Benefit Protection Act (OWBPA) and the Age Discrimination in Employment Act (ADEA). On September 8, 1997, Defendant Bull HN Information Systems, Inc. ("Bull") moved to dismiss on a number of different theories. [docket # 6]. For the reasons set forth below, the defendant's motion is DENIED.

I. BACKGROUND

Bull, a company engaged in advanced technology, employed approximately 4,500 people in Massachusetts as of December, 1988. Since that time, Bull has reduced its Massachusetts workforce by over 3,000 employees.

Several former Bull employees, laid off pursuant to the company's workforce reduction program, filed age discrimination complaints with the Equal Employment Opportunity Commission ("EEOC") and the Massachusetts Commission Against Discrimination ("MCAD"). In 1993, the Massachusetts Attorney General initiated an investigation into Bull's employment practices, and in July of that year, informed Bull that it intended to file an age discrimination complaint against the company. On July 25, 1994, the Attorney General intervened in a complaint filed against Bull with the MCAD, alleging that Bull was engaged in a pattern and practice of age discrimination, and that older employees had been disproportionately affected by the lay-offs between 1990 and 1994.

Prior to the Attorney General's investigation, Bull had a longstanding severance pay plan in effect that offered one week of base pay for each year of service to certain employees who were laid off. Bull revised this severance plan effective July 5, 1994, after the Attorney General's investigation had begun. Under the new plan, laid off employees were required to sign a waiver of rights, including ADEA rights, before receiving any severance pay. This "General Release and Severance Agreement" provided that in exchange for receiving severance benefits, an employee gives up the ability to sue Bull for any current or prior claims arising out of the employee's employment with Bull. The amount of severance pay under the new plan did not change.

The severance plan further provided that if an employee who executed a release later brought or maintained any claim covered by the agreement, he or she would be required to return all severance paid and would have to indemnify Bull for all attorneys fees, costs and expenses associated with defending the complaint or claim.

In July 1994, over fifty more employees were laid off, pursuant to an employment termination program within the meaning of section 626 of the OWBPA. Affected individuals were given the revised release and severance agreement.

In May of 1996, the Attorney General filed a complaint against Bull with the EEOC alleging that the waivers violated the OWBPA. In a June 19, 1996, "determination," the EEOC concluded that there were reasonable grounds to believe that Bull's waivers violated the OWBPA. As required by the ADEA, the EEOC attempted to conciliate the matter informally. However, in a letter dated July 16, 1996, the EEOC informed both Bull and the Attorney General that the conciliation efforts were unsuccessful and that "[n]o further efforts to conciliate this case will be made." The letter concluded, "we are at this time forwarding the case to the Regional Attorney for possible litigation."

On May 13, 1997, the EEOC, at the Attorney General's request, sent the Attorney General a "notice of right to sue" form. The form indicated that the EEOC was continuing its handling of the claim, but that the Attorney General could file its own ADEA suit in court if it so desired. The letter was received by the Attorney General's office, but, apparently, because of an error in the address, was never received by Bull. The Commonwealth filed this action shortly thereafter, alleging five counts under the ADEA and OWBPA.¹

The EEOC has filed a separate lawsuit against Bull, on largely the same grounds, seeking largely the same relief. The EEOC's lawsuit was filed on the same day — approximately nineteen minutes later — as the one filed by the Commonwealth.

II. DISCUSSION

For the purposes of this motion to dismiss, I will accept as true all of the allegations in the complaint and draw inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Northeast Doran, Inc. v. Key Bank of Maine, 15 F.3d 1, 2 (1st Cir.1994). Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Estate of Soler v. Rodriguez, 63 F.3d 45, 53 (1st Cir.1995).

Bull presented three main grounds on which to dismiss the Commonwealth's action. First, Bull argues that, for various reasons, the Commonwealth has no standing to bring this action. Second, Bull asserts that the Commonwealth failed to comply with the procedural requirements for asserting a claim under the OWBPA. Finally, Bull maintains that the Commonwealth fails to state a claim upon which relief can be granted. I find none of Bull's arguments persuasive.

A. Standing

Bull offers several reasons why the Commonwealth has no standing to bring this action. It: a) disputes the Commonwealth's invocation of its inherent "parens patriae" powers to act in the interests of its citizens; b) asserts that the parallel lawsuit brought by the EEOC precludes this one; c) contends that the Attorney General is not a "person aggrieved" under the ADEA and that he fails to meet Article III's constitutional standing threshold; and, d) argues that a government entity cannot bring an ADEA action without naming specific former employees who have been injured by Bull's conduct. These arguments will be discussed in turn.

1. Parens Patriae Standing

a. Parens Patriae Generally

Parens patriae literally means "parent of the country," and refers traditionally to the role of the state as sovereign and guardian of persons under legal disability. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982); see also 3 William Blackstone, Commentaries *47 (the sovereign is the "general guardian of all infants, idiots, and lunatics") cited in Hawaii v. Standard Oil Co., 405 U.S. 251, 257, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). Over time, the meaning of the doctrine has evolved, and parens patriae has become a different and far broader sovereign power. See Snapp, 458 U.S. at 600, 102 S.Ct. 3260; Minnesota v. Standard Oil Co., 568 F.Supp. 556, 562 (D.Minn.1983). Today, it is a concept of standing utilized to allow the state to protect "quasi-sovereign" interests such as the health, comfort, and welfare of its citizens, interstate water rights, and the general economy of the state. Snapp, 458 U.S. at 602-07, 102 S.Ct. 3260.

The Supreme Court in Snapp articulated the circumstances under which a state has parens patriae standing to bring an action under federal law. See Snapp, 458 U.S. at 607-08, 102 S.Ct. 3260. In Snapp, the Commonwealth of Puerto Rico filed suit against Virginia apple growers,...