99 F.R.D. 89 (D.N.J. 1983), C. A. 83-809, Lusardi v. Xerox Corp.

Docket NºCiv. A. 83-809.
Citation99 F.R.D. 89
Opinion JudgeSTERN, District Judge.
Party NameJules LUSARDI, et al., v. XEROX CORPORATION.
AttorneyRobert H. Jaffe, Jaffe & Schlesinger, Springfield, N.J., Steven I. Adler, Cole, Geaney, Yammer & Byrne, Patterson, N.J., for plaintiffs. Carmine A. Iannaccone, Stryker, Tams & Dill, Newark, N.J., for defendant.
Case DateAugust 30, 1983
CourtUnited States District Courts, 3th Circuit, United States District Courts. 3th Circuit. United States District Court (District of New Jersey)

Page 89

99 F.R.D. 89 (D.N.J. 1983)

Jules LUSARDI, et al.,

v.

XEROX CORPORATION.

Civ. A. No. 83-809.

United States District Court, D. New Jersey.

August 30, 1983

Action was brought under Age Discrimination in Employment Act seeking injunctive and monetary relief by four named plaintiffs on behalf of class based upon allegedly violative age-biased corporate policy implemented by employer on nationwide basis, and employer moved to dismiss. The District Court, Stern, J., held that: (1) state proceedings were " commenced" within meaning of section of Age Discrimination in Employment Act which provides that where deferral agency in state exists, agency must be given opportunity to hear charge before federal action can proceed; (2) class certification under Federal Rule of Civil Procedure was not authorized; (3) class could be certified under class action mechanism defined in Fair Labor Standards Act; and (4) written notice to potential opt in class members was authorized.

Order accordingly.

Page 90

Robert H. Jaffe, Jaffe & Schlesinger, Springfield, N.J., Steven I. Adler, Cole, Geaney, Yammer & Byrne, Patterson, N.J., for plaintiffs.

Carmine A. Iannaccone, Stryker, Tams & Dill, Newark, N.J., for defendant.

OPINION

STERN, District Judge.

This is an action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, for injunctive and monetary relief brought by four named plaintiffs on behalf of a class based upon an allegedly violative age-biased corporate policy implemented by defendant Xerox Corporation on a nationwide basis.1 In addition to the claims brought on behalf of the class, the four named plaintiffs individually seek damages based on pendent state law theories of contract and malicious discharge from employment. Defendant now moves to dismiss the complaint, or portions thereof, for these reasons: (1) plaintiffs' failure to commence proceedings with the state deferral agency; (2) the inapplicability of Rule 23, Fed.R.Civ.P., to class actions under the ADEA; and (3) the inappropriateness of considering the pendent claims in this action. Plaintiffs have concurrently moved for class certification under Rule 23, Fed.R.Civ.P., or in the alternative, under 29 U.S.C. § 216(b). We find that plaintiffs sufficiently commenced proceedings with the relevant state agency to allow us to maintain jurisdiction, and that a class may be certified under 29 U.S.C. § 216(b), but not under Rule 23. We will defer decision on the pendent claims pending determination of which state law is to apply.

1. Commencement of State Proceedings

The ADEA provides that in those states where a " deferral agency" exists, this agency must be given an opportunity to hear the charge of age discrimination before the federal action can proceed. 29 U.S.C. § 633(b) (no suit may be brought before the expiration of sixty days after the commencement of state proceedings unless such proceedings have been earlier terminated). Defendant incorrectly argues that in this case no plaintiff commenced a state action.2

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All four named plaintiffs received termination letters on November 6, 1981, as part of an involuntary reduction in force by Xerox. In January, 1982, each filed a charge of age discrimination with the Newark office of the Equal Employment Opportunity Commission (EEOC), which charges were forwarded by the Newark office to the Northeast Area Office of the EEOC in Boston for processing. Some time thereafter, the Boston EEOC sent these four charges to the Connecticut Commission on Human Rights and Opportunities (CCHRO), the state deferral agency in Connecticut.3 See 29 C.F.R. § 1601.74 (1982). On April 1, 1982, all four named plaintiffs signed " Request for Waiver of Jurisdiction" forms supplied by the CCHRO, in which each requested that the CCHRO waive jurisdiction of his complaint against Xerox. At this point the charges went back to the EEOC, which conducted an investigation and attempted informal conciliation. The EEOC reported to plaintiffs in October, 1982, that attempts at conciliation had failed. Plaintiffs subsequently filed suit in this court in March, 1983.

State proceedings were " commenced" within the meaning of 29 U.S.C. § 633(b) when the Boston EEOC deferred plaintiffs' charges to the CCHRO. That Connecticut's deferral agency allowed for waiver of jurisdiction does not detract from the fact that the state agency was presented with the charges and given an opportunity to hear them. Once these state proceedings were terminated, plaintiffs were entitled to pursue their remedies in a federal forum.4 We therefore find that this case is properly before us. 5

2. Class Certification

Plaintiffs initially seek certification of a class under Rule 23(b)(2) or (b)(3), Fed.R.Civ.P.; defendant moves to dismiss Count One of the Complaint on the grounds that a Rule 23 class action may not be maintained in an ADEA action. With the support of unambiguous statutory language and unanimous appellate court interpretation, we hold that a class cannot be certified pursuant to Rule 23 on an ADEA claim.

The ADEA explicitly adopts specific procedural rules from the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19. As stated in § 7(b) of the ADEA:

The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section ....

29 U.S.C. § 626(b). Section 16(b) of the FLSA, 29 U.S.C. § 216(b), provides that an employee may bring an action to recover under the FLSA on behalf of a larger class of employees " similarly situated", subject to the requirement that a person file written consent with the court in order to become part of the class. Section 16(b) states in relevant part:

An action to recover [under the FLSA] ... may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless

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he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought ....

29 U.S.C. § 216(b). Thus, in contrast to the " opt out" class action provided by Rule 23, the FLSA describes an " opt in" class action-no one is a member of the class until written consent is given to the court.

There can be no doubt that the express language of § 7(b) of the ADEA selects the class action mechanism defined in § 16(b) of the FLSA, not that set forth in Rule 23. This has been the conclusion of every circuit court that has faced the question of whether the ADEA incorporates the FLSA class action procedure. See EEOC v. Gilbarco, Inc., 615 F.2d 985 (4th Cir.1980); Bean v. Crocker National Bank, 600 F.2d 754 (9th Cir.1979); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir.1975); see also Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir.1975) (decided under FLSA, but relying on reasoning of LaChapelle ); cf. Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978) (in finding that jury trial right exists under ADEA, Court emphasizes Congress' directive that the ADEA be enforced in accordance with the powers, remedies and procedures of the FLSA). Virtually every district court faced with this problem has resolved the matter identically. See, e.g., Allen v. Marshall Field & Co., 93 F.R.D. 438 (N.D.Ill.1982); EEOC v. Chrysler Corp., 546 F.Supp. 54 (E.D.Mich.1982); Sussman v. Vornado, Inc., 90 F.R.D. 680 (D.N.J.1981); see generally Lipschultz, The Class Action Suit Under the Age Discrimination in Employment Act: Current Status, Controversies, and Suggested Clarifications, 32 Hastings L.R. 1377, 1383-85 & n. 56 (1981) (summarizing district court cases); but see Blankenship v. Ralston Purina Co., 62 F.R.D. 35 (N.D.Ga.1973) (Rule 23 applicable to ADEA suit; effectively overruled by LaChapelle ); Bishop v. Jelleff Associates, Inc., 4 Fair Empl.Prac.Cas. (BNA) 1262 (D.D.C.1972) (class certified under Rule 23 after all plaintiffs had filed consent with the court; no notice given to those not " opting in" and no opportunity to " opt out" ).

In the face of this immense authority to the contrary, plaintiffs argue that the FLSA " opt in" class action is not the...

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1 practice notes
  • Preliminary Certification Is Not The End
    • United States
    • LexBlog United States
    • 31 Agosto 2010
    ...today use the two-step procedure described in Lusardi v. Xerox Corp., 99 F.R.D. 89 (D.N.J.1983), to decide whether to certify potential classes under section 16(b) of the Fair Labor Standards Act. Under that procedure, the court the court looks at certification twice, first before much disc......
1 firm's commentaries
  • Preliminary Certification Is Not The End
    • United States
    • LexBlog United States
    • 31 Agosto 2010
    ...today use the two-step procedure described in Lusardi v. Xerox Corp., 99 F.R.D. 89 (D.N.J.1983), to decide whether to certify potential classes under section 16(b) of the Fair Labor Standards Act. Under that procedure, the court the court looks at certification twice, first before much disc......

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