EEOC v. Consolidated Edison Co. of New York, 80 CIV 1292 (LBS)

• Decision Date: 22 February 1983
• Docket Number: 80 CIV 8400 (LBS).,No. 80 CIV 1292 (LBS),80 CIV 1292 (LBS)
• Citation: 557 F. Supp. 468
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant, Anselmo Cardillo, Frank Basile, Anthony Casbarro, Frank Cassaro, [sic] James Cassidy, Ernie Forde, Ralph Fouse, Hamilton Kane, Joseph Kennan, Vincent Macioci, Thomas McNamara, Charles Mondello, Jack Monteserrato, Anna Pasqua, Thomas Quinn, Arthur Schiliro, Phil Spinelli, Peter Devito, Joseph Elliot and Joseph Luckett, Individually and on behalf of all others similarly situated, Movants. Anselmo CARDILLO, et al., Plaintiffs, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

557 F. Supp. 468

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant, Anselmo Cardillo, Frank Basile, Anthony Casbarro, Frank Cassaro, sic James Cassidy, Ernie Forde, Ralph Fouse, Hamilton Kane, Joseph Kennan, Vincent Macioci, Thomas McNamara, Charles Mondello, Jack Monteserrato, Anna Pasqua, Thomas Quinn, Arthur Schiliro, Phil Spinelli, Peter Devito, Joseph Elliot and Joseph Luckett, Individually and on behalf of all others similarly situated, Movants.

Anselmo CARDILLO, et al., Plaintiffs, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant.

Nos. 80 CIV 1292 (LBS), 80 CIV 8400 (LBS).

United States District Court, S.D. New York.

February 22, 1983.

E.E.O.C., New York Dist. Office, Jean L. Schmidt, Senior Trial Attorney, Susan Anspach, Senior Trial Attorney, New York City, for plaintiff.

Proskauer, Rose, Goetz & Mendelsohn, New York City, for Consolidated Edison Co. of New York, Inc.; Howard L. Ganz, New York City, of counsel.

Shneyer & Shen, Hall, Clifton & Schwartz, New York City, for movants; Paul A. Shneyer, Karen S. Schwartz, New York City, of counsel.

OPINION

SAND, District Judge.

On March 4, 1980, three days prior to the date upon which the statute of limitations would have barred any claims against Consolidated Edison for the terminations at issue herein, the United States Equal Employment Opportunity Commission (the "EEOC") commenced the proceeding EEOC v. Consolidated Edison, 80 CIV 1292 (LBS) (the "EEOC action") pursuant to section 7(b) of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 626(b), and sections 16(c) and 17 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 216(c), 217. The complaint alleged, inter alia, that defendant Consolidated Edison ("Con Edison") had, since March 3, 1977, willfully violated the ADEA by:

"discriminating on or about March 7, 1977, against certain non-union employees, including but not limited to the employees listed on Exhibit A annexed hereto and incorporated herein who were employed by defendant and who were then between the ages of 40 and 65, with respect to their compensation, terms, conditions or privileges of employment by discharging them, and/or involuntarily retiring them because of their age; and by....

discriminating against employees who were then between the ages of 40 and 65 with respect to their compensation, terms, conditions or privileges of employment by refusing to hire them because of their age."

Complaint ¶¶ 7, 8. The relief sought included a judgment enjoining Con Edison from violating the ADEA; an order requiring Con Edison to institute policies, practices and affirmative action programs that provide equal employment opportunities for individuals protected by the ADEA; and reinstatement and backpay, as well as liquidated damages, for those former Con Edison employees on whose behalf the EEOC brought suit (the "claimants"). No judicial action against Con Edison had been commenced by any claimant prior to the filing of the EEOC suit.

More than two years of extensive discovery and pretrial preparation followed, during which over 200 depositions were conducted, more than 100,000 pages of documents were reviewed (Affidavit of Howard L. Ganz, dated Jan. 17, 1983, ¶ 4), and numerous motions were vigorously argued and decided by the Court. See, e.g., Opinion, dated January 21, 1981; Opinion, dated June 2, 1981; Order, dated June 23, 1981; Order, dated September 9, 1981; Opinion, dated February 24, 1982; Opinion, dated May 10, 1982; Order, dated July 6, 1982; Memorandum Endorsement, dated October 1, 1982; Order, dated October 14, 1982.

Upon the eve of trial and upon the suggestion of the Court, the EEOC and Con Edison engaged in settlement discussions, the result of which was a proposed settlement. All of the claimants but three — for whom the EEOC lacked correct addresses — were then notified by mail. Partly in response to the vociferous opposition that these notices evoked from some of the claimants — as expressed in written communications addressed to the Court and forwarded to the EEOC — the EEOC invited all claimants to a meeting held on December 4, 1982, to explain further the proposed settlement and to answer any remaining questions. Once again, some claimants expressed their strong dissatisfaction.

On December 13, 1982, the EEOC and Con Edison entered into a Settlement of Agreement (the "settlement") which to some unspecified extent had been modified to reflect expressions of dissatisfaction. Briefly stated, the settlement provides for the payment of benefits worth approximately $3.5 million dollars to the claimants. Each of the terminated Con Edison employees who has remained alive and has not "withdrawn" as a claimant¹ will recover money under the settlement. The sums ultimately paid to each claimant do not take into account the merits of the particular case but rather are based on the claimant's age: upon attaining the age of 65, each claimant will receive for the duration of his life a monthly payment of at least $100.00, pursuant to an annuity contract purchased in his behalf by Con Edison. Each claimant will also receive a presently indeterminable lump-sum payment inversely related to the claimant's age as of March 7, 1977. Further, the settlement provides that it is the "explicit and essential agreement" between the parties that all claims asserted by the EEOC be "resolved and settled in full" and "dismissed with prejudice". Agreement of Settlement ¶ 7, annexed as Exhibit C to the Affidavit of Howard Ganz, Esq., dated January 17, 1983.

On December 13, 1982, the parties also entered into on December 13th, a Stipulation of Dismissal with Prejudice, which the Court "So Ordered" on the following day. In so doing, the Court noted:

"A number of former employees of the defendant have written to the Court expressing views with respect to the appropriateness of the within settlement. Some of these communications reflect a misunderstanding of the Court's role in approving this settlement.

This suit is not a class action nor does it fall within any other of the limited categories of cases in which a Court is called upon to determine the fairness or desirability of a proposed settlement. In approving this settlement, this Court merely acknowledges that the parties have exercised the right, which they have, to discontinue this litigation."

On December 16, 1982, twenty claimants, dissatisfied with the terms of the settlement, commenced the action captioned Cardillo, et al. v. Consolidated Edison, 82 CIV 8400 (LBS) (the "Cardillo action"). The complaint describes the plaintiffs as Con Edison employees who were discharged from employment in March, 1977, when they were between the ages of 40 and 65, and assert violations of ADEA identical to those alleged by the EEOC in the EEOC action. It is not disputed that each plaintiff in the Cardillo action is a claimant in the EEOC action and that both seek to redress the same alleged ADEA violations by Con Edison.²

THE MOTIONS

In the EEOC proceeding, the group of claimants appearing as plaintiffs in the Cardillo case (hereafter "movants") have moved this Court for an order pursuant to Fed.R.Civ.Proc. 60(b)(6) dismissing the action without prejudice to the employees who refuse to accept the terms of the settlement entered into by the parties and to allow them to litigate their claims in the Cardillo proceeding or an order allowing the movants to "opt-out" of the settlement and directing the EEOC to prosecute their claims; or, in the alternative, an order pursuant to Fed.R.Civ.Proc. 24(a)(2) allowing movants to intervene, "opt-out" of the settlement and pursue their claims in this Court; or, in the alternative, an order to hold a hearing on the fairness of the settlement.

In the Cardillo proceeding, Con Edison has moved to dismiss the complaint or, in the alternative, for summary judgment on the ground that this proceeding has been precluded by the earlier-filed and now-dismissed EEOC action.

The parties have submitted briefs and affidavits in support of their positions and have appeared before the Court for oral argument. They have concurred in the Court's view, as stated during oral argument, that the motions in both proceedings be disposed of jointly.

ISSUE

Section 7(c)(1) of the ADEA states:

"any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this chapter."

29 U.S.C. § 626(c)(1).³

The primary issue raised by the motion is as follows: Where the proviso of ADEA § 7(c)(1) is applicable, i.e., where the aggrieved person's unexercised right of action has been "terminated" by the EEOC's commencement of an enforcement action, does such person nevertheless retain a revivable and thus judicially protectible private right of action for his ADEA-based claim?

Movants contend that this issue is correctly resolved in the affirmative and that they are therefore entitled to some form of judicial review of the EEOC's decision to enter into a stipulation of dismissal with prejudice as to their claims in the EEOC proceeding. Movants further contend that such judicial review should take the form of an inquiry into the "fairness" of the settlement and suggest that the Court conduct a hearing to that end.

Our reading of the statute and the relevant legislative history, however, convinces us that the above-stated issue must be answered in the negative. The proviso of ADEA § 7(c)(1) manifests a congressional intent to place the EEOC's conduct of ADEA enforcement proceedings beyond the interference of private non-party individuals, at least where such persons fail to file suit prior to the EEOC's commencement of a suit on their...