Lusardi v. Lechner

Citation855 F.2d 1062
Decision Date31 August 1988
Docket NumberNo. 87-,87-5902,Nos. 87-5901,87-,s. 87-5901
Parties48 Fair Empl.Prac.Cas. 1235, 47 Empl. Prac. Dec. P 38,254, 11 Fed.R.Serv.3d 1249 Jules LUSARDI, Walter N. Hill, James Marr, Jr., John F. Weiss, Arthur Brickman, Martin J. Cocca, Carl B. Heisler, Raymond C. Loyer, Donald P. Miller, Robert C. Patterson, Anthony T. Salvatore, Eldon Sheldon, Michael Sylvestri, individually and on behalf of all other persons similarly situated, Petitioners at5901, v. Honorable Alfred J. LECHNER, Jr., United States District Judge, Nominal Respondent, Xerox Corporation, a New York corporation, Respondent. Jules LUSARDI, Walter N. Hill, James Marr, Jr., John F. Weiss, Arthur Brickman, Martin J. Cocca, Carl B. Heisler, Raymond C. Loyer, Donald P. Miller, Robert C. Patterson, Anthony T. Salvatore, Eldon Sheldon, Michael Sylvestri, individually and on behalf of all other persons similarly situated, Appellants at5902, v. XEROX CORPORATION, a New York corporation, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Robert H. Jaffe (argued), Jaffe & Schlesinger, P.A., Springfield, N.J., John F. Geaney, Steven I. Adler, Cole, Geaney, Yamner & Byrne, Paterson, N.J., Robert L. Deitz (argued), Hilary Harp, Perkins, Coie, Myer Feldman, Alan S. Weitz, Ginsburg, Feldman & Bress, Washington, D.C., for petitioners/appellants.

Alfred H. Hoddinott, Jr., Xerox Corp., Stamford, Conn., Robert J. Del Tufo (argued), Hannoch, Weisman, P.C., Roseland, N.J., Fred A. Freund, Kaye, Scholer, Fierman, Hays & Handler, New York City, for respondent/appellee.

Before HUTCHINSON, SCIRICA and ROSENN, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Jules Lusardi and the other named plaintiffs (Lusardi) in this age discrimination action seek to appeal an order of the United States District Court for the District of New Jersey revoking that court's prior conditional certification of an opt-in class. Recognizing that an action granting or denying class certification is interlocutory and generally not appealable, they ask, in the alternative, that we exercise our jurisdiction under the All Writs Act, 28 U.S.C.A. Sec. 1651 (West 1966), and issue a mandamus to the district court directing it to continue the class certification. On the merits, Lusardi asserts a number of errors by the district court in revoking certification, none of which we can reach unless we either have appellate jurisdiction or decide that a writ of mandamus is warranted.

For the reasons that follow, we hold that we lack appellate jurisdiction. We also hold that the action of the district court, with one exception, does not present us with a clear error of law and the absence of any alternative remedy, both of which conditions must be met before we have discretion to grant mandamus. Therefore, we will dismiss the appeal for lack of jurisdiction. We will, however, grant mandamus for the limited purpose of directing the district court to vacate its holding on the necessity of timely individual administrative filings of charges of age discrimination by the persons it has held do not constitute a proper opt-in class; to reconsider its order decertifying the class for disparate defenses without relying on the presence, or absence, of individual administrative charges or their timing; and, if the court nevertheless concludes class decertification is required, to modify the form of notice it directed be sent to the members of the putative opt-in class by eliminating any implication that they may be barred from pursuing remedies for asserted age discrimination because they failed individually to file timely administrative claims with the Equal Employment Opportunity Commission (EEOC).

I.

Jules Lusardi and three other former employees filed a class action against the Xerox Corporation (Xerox) on March 8, 1983, pursuant to Sec. 7 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. Secs. 621-634 (West 1985 & Supp.1988). The second amended class action complaint, filed October 6, 1983, alleges that Xerox has a nationwide policy and practice of using age as a determinate factor in carrying out salaried workforce reductions. 1 Lusardi sought class certification, injunctions restraining Xerox from continuing to implement age-based corporate policies, an order directing it to implement an affirmative action program, reinstatement of plaintiffs and opt-in members of the putative class to positions comparable to those they held with Xerox before the alleged discriminatory pattern affected them individually, backpay, other pecuniary damages and costs. The class was conditionally certified by the district court on January 30, 1984 and included:

All salaried employees in the forty (40)-seventy (70) age group who in the period May 1, 1980 through March 31, 1983 have been terminated or required to retire from employment at an age less than seventy or have been denied equal employment opportunities for promotion at any unit, division or American subsidiary of Xerox Corporation and who contend that such termination, retirement or denial of promotion was caused by age discrimination policies or practices of Xerox Corporation.

App. at 180. The conditional certification was made without prejudice to the parties' rights to move for decertification or enlargement or modification of the class or the order. On February 1, 1984, Xerox appealed the district court's order 2 and petitioned for a writ of mandamus, arguing that the district court erred in (1) ordering Xerox to provide to the court the names and addresses of all potential class members and authorizing Lusardi to send notice to such potential class members and (2) conditionally certifying an across-the-board opt-in class.

This court denied Xerox's petition for mandamus by order dated February 9, 1984 and in a published opinion dismissed Xerox's appeal for lack of jurisdiction. See Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir.1984) (hereinafter Lusardi I ). After concluding that the district court's order was appealable only if it fell within the "collateral order" exception of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we analyzed each issue separately in light of Cohen's three requirements that: (1) the order conclusively determine the disputed question, (2) it resolve an important issue completely separate from the merits of the action, and (3) it be effectively unreviewable on appeal from final judgment. Lusardi I, 747 F.2d at 176 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Xerox's argument regarding conditional class certification failed to meet the first prong of Cohen because the district court's order was subject to revision. Id. at 177. The district court's order requiring Xerox to provide a mailing list of potential class plaintiffs and authorizing plaintiffs to send them notice was not appealable because it was "essentially a discovery device" and therefore interlocutory. Id. at 178. 3

The parties agreed to randomly select a fifty-one class member "sample group" out of the thirteen hundred persons who responded to the initial notice and opted in. After making the selection, they entered into intensive discovery. It focused on both the sample group and the thirteen plaintiffs named in the second amended complaint. Lusardi's motion to file a third amended complaint to add a fourteenth named plaintiff and thereby expand the class period to include April 1, 1983 through May 1, 1984, as well as to add class-wide allegations of state contract and age discrimination claims, was denied by Magistrate Ronald Hedges on June 2, 1986 and by the district court on June 17, 1986.

Upon the completion of discovery, Xerox moved to decertify the conditional class. Lusardi filed a cross-motion for summary judgment or, in the alternative, for a presumption of class-wide liability. Lusardi also moved to strike Xerox's expert report. On December 16, 1987, District Judge Alfred J. Lechner, Jr. granted Xerox's motion to decertify the class and denied Lusardi's motions as moot. In a seventy-five page opinion, 4 the district court assessed the class in light of the "similarly situated" requirement of Sec. 16(b) of the Fair Labor Standards Act (FLSA), codified at 29 U.S.C.A. Sec. 216(b) (West Supp.1988) (as amended by the Portal-to-Portal Act of 1947, 29 U.S.C.A. Secs. 251-262 (West 1985)). 5 Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987) (hereinafter Lusardi II ). The district court first found that disparate employment situations 6 among the class plaintiffs were "significant not only to plaintiffs' claims but as well to the ability of Xerox to defend against the claims." Id. at 361. In examining Xerox's defenses to several of the sample group members' claims, the court concluded that "the proposed class plaintiffs are not similarly situated and that considerations of fairness, as well as, efficiency are defeated by maintenance of a class action in this case." Id. at 363. The court reasoned:

To proceed without permitting Xerox to raise at the liability stage of trial each and every defense available to it where each potential class member is readily identifiable and must step forward in order to assert and prove an individual claim for liability or at least be the subject of a defense particular to each such plaintiff would deprive defendant of the Fifth Amendment right to due process.

App. at 667 (footnote omitted).

The court interpreted the FLSA Sec. 16(b)'s "similarly situated" requirement to "presuppose" a common defense, giving the defendant an opportunity to effectively defend against the class allegations. It distinguished International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), by explaining that in that case the union did not assert, or seek to assert, individual defenses against each class plaintiff. The district court also...

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