Kuhn v. Philadelphia Elec. Co.

• Decision Date: 10 March 1980
• Docket Number: Civ. A. No. 77-1107.
• Parties: Marie KUHN and Dorothy Kupferschmidt and Marie L. Lepping and Janet McClarren, on their own behalf and on behalf of all others similarly situated v. PHILADELPHIA ELECTRIC COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

487 F. Supp. 974

Marie KUHN and Dorothy Kupferschmidt and Marie L. Lepping and Janet McClarren, on their own behalf and on behalf of all others similarly situated v. PHILADELPHIA ELECTRIC COMPANY.

Civ. A. No. 77-1107.

United States District Court, E. D. Pennsylvania.

March 10, 1980.

Alice W. Ballard, Philadelphia, Pa., for plaintiff.

Robert W. Maris, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

HUYETT, District Judge.

On March 28, 1977, plaintiffs instituted this action alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The original complaint included allegations that, inter alia, defendant "maintains a practice of discriminating on the basis of gender in hiring, promotion, salaries, and other terms and conditions of employment, to the detriment of females," Complaint ¶ 5, that defendant "pays women lower salaries than men, even where the work performed is comparable and higher qualifications are required of women than men," id. ¶ 8, and that "named Plaintiffs were paid lower salaries than males performing comparable work," id. ¶ 22. We determined that plaintiffs' action could be maintained as a class action. Kuhn v. Philadelphia Electric Co., 80 F.R.D. 681 (E.D.Pa. 1978). Thereafter Shirley E. Tumelty's motion to intervene was granted. Furthermore, plaintiffs were granted leave to amend their complaint to add a claim based on the Equal Pay Act, 29 U.S.C. § 206(d), in regard to the Customer Services Department. Kuhn v. Philadelphia Electric Co., 475 F.Supp. 324 (E.D.Pa.1979). Plaintiffs were not permitted to prosecute that claim as a Rule 23 class action; we held that the Equal Pay Act claim was controlled by the procedural requirements set out in 29 U.S.C. § 216(b). Most recently we denied plaintiffs' motion to amend to add an additional Equal Pay Act claim concerning the Finance and Accounting Department. Kuhn v. Philadelphia Electric Co., 85 F.R.D. 86 (E.D.Pa.1979).

Individual consents to be party plaintiffs to the Equal Pay Act claim were filed with the court beginning as early as March, 1979 and were filed up until at least November, 1979. We are now required to determine, based upon the procedural history of this case, when each individual Equal Pay Act claimant's action is deemed to have commenced. Counsel have represented that this question, raised in the context of an original Title VII complaint later amended to add an Equal Pay Act claim, is one of first impression. Our own research has located no cases directly on point.

In order to be a party to a collective action brought under the Equal Pay Act, an individual must file his or her consent with the court in which the action is brought. 29 U.S.C. § 216(b). The statute of limitations for such actions is established by 29 U.S.C. § 255. 29 U.S.C. § 256 elaborates in relevant part that

In determining when an action is commenced for purposes of section 255 of this title, . . . a collective or class action shall be considered to be commenced in the case of any individual claimant—

(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or

(b) if such written consent was not so filed or if his name did not so appear— on the subsequent date on which such written consent is filed in the court in which the action was commenced.

In plaintiffs' view, the provisions of § 256 create no real hurdle that they must overcome. Plaintiffs contend that both the amendment raising the Equal Pay Act claims and the written consents relate back to the time of filing of the original Title VII class action complaint. See Federal Rule of Civil Procedure 15(c). Each individual Equal Pay Act claimant's action would, under their theory, commence as of March 28, 1977. Defendant, on the other hand, contends that no Equal Pay Act action can begin until August, 1979, when the named plaintiffs filed their written consents with the Court. In defendant's view, there is no relation back whatever on the facts of this case. Furthermore, defendant reads the language of § 256(b) ("if such written consent was not so filed . . .") (emphasis supplied) to refer to the written consents of the parties named in the complaint. Under defendant's theory, if the named plaintiffs' consents were not filed at the time the complaint was filed, no individual claimant's action commences until the named plaintiffs file their consents. In our view, neither plaintiffs nor defendants have correctly construed § 256 as it applies to this action.

Courts which have considered 29 U.S.C. § 256 have distilled from it two basic prerequisites for the commencement of a § 216(b) suit: a complaint must be filed, and the claimant must file his or her individual written consent. See, e. g. Groshek v. Babcock & Wilcox Tubular Products Division, 425 F.Supp. 232 (E.D.Wis.1977); Kulik v. Superior Pipe Specialties Co., 203 F.Supp. 938 (N.D.Ill.1962). Signed consents filed after the filing of the complaint do not relate back to the date the complaint was filed. Kulik v. Superior Pipe Specialties Co., supra. Although Federal Rule of Civil Procedure 3 provides that "a civil action is commenced by filing a complaint with the court," 29 U.S.C. § 256 creates an additional requirement in the case of an Equal Pay Act claimant in a collective action: his or her written consent must be filed as well. Section 256 contemplates several sequences, however, in which these dual requirements can be satisfied. First of all, if the claimant is named in the complaint and his or her consent is filed concurrently with the complaint, the claimant's action is commenced at that time. 29 U.S.C. § 256(a). Another possibility is that a claimant is named in the complaint, but he or she does not file a consent along with the complaint. In that event, his or her action is commenced when the consent is subsequently filed. 29 U.S.C. § 256(b). See Kulik v. Superior Pipe Specialties Co., supra. A third possibility is that the claimant was not named in the complaint and did not file a consent at the time the complaint was filed.¹ In that case, subparagraph b of § 256 controls: "if such written consent was not filed or if his name did not so appear—on the subsequent date on which such written consent is filed in the court in which the action was commenced." (Emphasis supplied). Defendant has parsed this statutory language and concluded that "such written consent" in subparagraph b can logically refer only to the "written consent" mentioned in subparagraph a, that is, the written consent of the named plaintiffs. Under defendant's reading of § 256, no individual claimant's action can begin until the named plaintiffs have filed their written consents, which, defendants continue, did not occur until August, 1979 in this case.

We do not accept defendant's reading of the relevant statutory language. Although § 256 may not be a model of grammatical clarity, we believe that the language "such written consent" in subparagraph b refers in the second instance it appears in that subparagraph to the consent of the individual claimant whose action is under consideration, regardless of whether that individual is or is not a named plaintiff. Therefore, in the case of claimants not named in the complaint who filed their individual consents after the complaint was filed, the Equal Pay Act action would commence as of the date on which they filed their consents. We believe this interpretation of § 256 gives sensible effect to Congress's intent in enacting this section and avoids certain technical difficulties raised by defendant's approach. One goal of § 256 is to provide defendants with notice of the claims against which they must defend. This is accomplished, as to any individual claimant, on the date on which his or her consent is filed, regardless of whether the named plaintiffs have by that time filed their consents. Furthermore, defendant's reading of this section would permit a named plaintiff to jeopardize the claims of claimants unnamed in the complaint by failing to file his or her consent, thereby delaying indefinitely the commencement of the other individuals' actions. Such a result would further none of the remedial purposes of the Equal Pay Act. Finally, a strict application of defendant's approach would result in an anomalous result: it would deem a claimant's action commenced once a complaint was filed and the named plaintiff's consent was subsequently filed, even though the individual claimant's consent was not filed as of that date.² This is so because under defendant's theory the only consent mentioned in all of § 256 is the consent of the named plaintiff, a...