Hipp v. Liberty National Life Insurance

• Decision Date: 29 May 2001
• Docket Number: No. 99-10699,99-10699
• Citation: 2001 WL 575489,252 F.3d 1208
• Parties: (11th Cir. 2001) DAVID HIPP, and all others similarly situated; BRAD STEIN, and all others similarly situated; et al., Plaintiffs-Appellees, v. LIBERTY NATIONAL LIFE INSURANCE CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1208

252 F.3d 1208 (11th Cir. 2001)

DAVID HIPP, and all others similarly situated; BRAD STEIN, and all others similarly situated; et al., Plaintiffs-Appellees, v. LIBERTY NATIONAL LIFE INSURANCE CO., Defendant-Appellant.

No. 99-10699.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT.

May 29, 2001.

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Appeal from the United States District Court for the Middle District of Florida. D. C. Docket No. 95-01332-CIV-T-17A

Before BLACK, FAY, and COX, Circuit Judges.

PER CURIAM:

This age discrimination appeal requires us to decide several issues concerning application of the "single-filing," or "piggybacking," rule¹ to opt-in collective actions under 29 U.S.C. § 216(b). We address these important issues in Part I of this opinion, and we provide a brief summary of our holdings here. We first clarify the meaning of the "similarly situated" requirement under § 216(b). We conclude the similarly situated requirement is not particularly stringent, and we suggest an approach district courts can use to better manage these cases. We next consider the proper temporal scope of § 216(b) collective actions, an issue this Court has not yet directly addressed. As to the proper rearward cutoff date, we conclude in order to properly opt into a § 216(b) action, a plaintiff must allege discriminatory treatment within 180 or 300² days before the representative plaintiff's charge is filed with the Equal Employment Opportunity Commission (EEOC). We conclude the proper forward cutoff date is the date of filing of the representative charge. Plaintiffs who do not allege discriminatory treatment occurring during this period may not opt into a § 216(b) action. In other words, a plaintiff must have been able to file his or her charge of discrimination on the date the representative plaintiff filed the representative charge.³ In Part II of this opinion, we address the sufficiency of the evidence presented in this case.

BACKGROUND & PROCEDURAL HISTORY

This case arises under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §§ 621-34, and the Florida Civil Rights Act of 1992 (FCRA), Fla. Stat. Ann. §§ 760.01-760.11. Plaintiffs David Hipp, Harry W. McKown, Jr., and Brad Stein filed their original complaint in Florida state court, alleging Appellant Liberty National Life Insurance Company (Liberty National) engaged in a pattern and practice of age discrimination resulting in Plaintiffs' constructive discharges. These three named Plaintiffs claimed to bring the case on behalf of themselves and others similarly situated.

Liberty National removed the case to the United States District Court for the Middle District of Florida. Plaintiffs amended the complaint to add another named Plaintiff, Mike Stell. Plaintiffs then informed the district court they intended to pursue a collective action under 29 U.S.C. § 216(b). Plaintiffs sought to distribute notice of an opt-in class under § 216(b). Liberty National opposed this motion, maintaining Plaintiffs were not "similarly situated." Liberty National further argued that even if Plaintiffs were similarly situated such that a collective action was proper, Plaintiffs' proposed notice was defective because it would allow opt-in by individuals who could not properly piggyback into the case. On February 6, 1996, the district court approved Plaintiffs' proposed notice. Hipp v. Liberty Nat'l Life Ins. Co., 164 F.R.D. 574, 576 (M.D. Fla. Feb. 6, 1996). The district court adopted the following class definition, proposed by Plaintiffs:

All persons who are, or were, employed by Liberty National Life Insurance Company on or after August 25, 1993, who are, or were, managerial employees, district managers or above, residing in the United States, who were over 40 years of age.

Id.

Over twenty individuals eventually filed consents to opt in, although some were untimely.⁴

After the close of extended discovery, Liberty National sought to sever the cases. Liberty National also filed motions for summary judgment as to the claims of several Plaintiffs. The court substantially denied Liberty National's motions for summary judgment.⁵ The court also denied Liberty National's request to certify an interlocutory appeal and its motion to sever the cases.

The claims of ten Plaintiffs were tried before a jury over the course of five weeks beginning June 1, 1998. The jury returned verdicts on July 9, 1998, finding that Liberty National had engaged in a pattern and practice of age discrimination, but returning defense verdicts as to three of the ten Plaintiffs, whose claims are not at issue in this appeal.

The jury's verdicts awarded back pay and ADEA liquidated damages to the seven prevailing Plaintiffs. Hipp v. Liberty Nat'l Life Ins. Co., 65 F. Supp. 2d. 1314, 1334-35 (M.D. Fla. 1999); Hipp v. Liberty Nat'l Life Ins. Co., 29 F. Supp. 2d. 1314 1318-19 (M.D. Fla. 1998). Plaintiffs Hipp and Stein received punitive damages and pain and suffering damages under the FCRA, and the jury returned advisory front pay verdicts as to the five prevailing Plaintiffs other than Hipp and Stein. The district court ordered that no Plaintiff should receive front pay because the Plaintiffs' front pay award estimates were too speculative. Hipp, 65 F. Supp. 2d. at 1336; Hipp v. Liberty Nat'l Life Ins. Co., 39 F. Supp. 2d. 1359, 1361-64 (M.D. Fla. 1999). Furthermore, the district court remitted some of the punitive damages and liquidated damages awarded to Stein and Hipp. Hipp, 39 F. Supp. 2d. at 1364-65; Hipp, 29 F. Supp. 2d. at 1335. In all other respects, the court entered judgment in accordance with the jury's verdicts.

Liberty National moved for judgment as a matter of law (JMOL) both during and after trial, and filed motions for remittitur and new trial after entry of judgment. The district court denied Liberty National's motions, except to the extent that it remitted some of the damages. Hipp, 65 F. Supp. 2d. at 1345.

Liberty National raises the following issues on appeal: (1) the district court erred in permitting a collective action in this case; (2) the district court erred in denying Liberty National's motions for judgment as a matter of law on Plaintiffs' pattern and practice claims; (3) the district court erred in denying Liberty National's motions for judgment as a matter of law on the Plaintiffs' individual claims; (4) the district court erred in denying Liberty National's motions for judgment as a matter of law as to liquidated damages; and (5) the district court erred in denying Liberty National's motion to remit the jury's verdicts.

For the reasons stated in Part I of this opinion, we affirm the district court's judgment on the propriety of a collective action, but we reverse as to the temporal scope of the action. For the reasons stated in Part II, we reverse the pattern and practice finding, and we reverse the verdicts in favor of the individual Plaintiffs. In light of our disposition regarding the verdicts, we need not address Liberty National's arguments pertaining to the damages awarded in this case.

DISCUSSION

I. OPT-IN COLLECTIVE ACTIONS UNDER 29 U.S.C. § 216(b)

A. Introduction and Background

Plaintiffs wishing to sue as a class under ADEA must utilize the opt-in class mechanism provided in 29 U.S.C. § 216(b) instead of the opt-out class procedure provided in Fed. R. Civ. P. 23. See Grayson, 79 F.3d at 1102 (citing Price v. Maryland Cas. Co., 561 F.2d 609, 610-11 (5th Cir. 1977)).⁶ In a Rule 23 class action, each person who falls within the class definition is considered to be a class member and is bound by the judgment, favorable or unfavorable, unless he has opted out. Fed. R. Civ. P. 23(c)(3); Grayson, 79 F.3d at 1106. By contrast, a putative plaintiff must affirmatively opt into a § 216(b) action by filing his written consent with the court in order to be considered a class member and be bound by the outcome of the action. § 216(b); Grayson, 79 F.3d at 1106; see also LaChappelle v. Owens-Illinois, Inc., 513 F.2d 286, 288-89 (5th Cir. 1975) (recognizing this "fundamental" difference between Rule 23 class actions and § 216(b) class actions).

To maintain an opt-in class action under § 216(b), plaintiffs must demonstrate that they are "similarly situated." § 216(b); Grayson, 79 F.3d at 1093. In subpart B, we will clarify the meaning of § 216(b)'s "similarly situated" requirement in this circuit. We will also suggest an approach for district courts to use in considering certification of ADEA opt-in classes.

This case also requires us to consider application of the piggybacking rule to ADEA opt-in classes under § 216(b). As a general rule, an employee who wishes to sue his employer for age discrimination must first file an administrative charge of discrimination with the EEOC. Under the piggybacking rule, however, a putative plaintiff who has not filed his own EEOC charge may "piggyback" his claim onto the claim of a plaintiff who has filed a timely charge. Grayson, 79 F.3d at 1101; Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 450 (11th Cir. 1993). We have specifically held that the piggybacking rule is applicable to ADEA cases. Grayson, 79 F.3d at 1101. In so holding, we adopted the two requirements used in Title VII piggybacking cases: A plaintiff may piggyback on another plaintiff's charge provided "'(1) the relied upon charge [to which he is piggybacking] is not invalid, and (2) the individual claims of the filing and non-filing plaintiff [the named filing plaintiff and the piggybacking plaintiff] arise out of similar discriminatory treatment in the same time frame.'" Id. at 1101-02 (quoting Calloway, 986 F.2d at 450).

The parties agree Plaintiff Stein filed the representative charge in this case, and they agree his charge was valid. They disagree, however, as to the precise meaning of the second...