Lachapelle v. Owens-Illinois, Inc.
Decision Date | 23 May 1975 |
Docket Number | INC,No. 74-4187,OWENS-ILLINOI,74-4187 |
Citation | 513 F.2d 286 |
Parties | 10 Fair Empl.Prac.Cas. 1010, 9 Empl. Prac. Dec. P 10,191 Francis E. LaCHAPELLE, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v., Defendant-Appellee. Summary Calendar. * |
Court | U.S. Court of Appeals — Fifth Circuit |
E. Lee Redfern, Rex M. Lamb, III, Atlanta, Ga., for plaintiff-appellant.
Lloyd Sutter, Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.
This is an interlocutory appeal 1 taken from an order of the district court dismissing Appellant LaChapelle's class action claim in an age discrimination suit. The appeal presents for decision a single, well defined question of law. This is whether suits brought under the Age Discrimination in Employment Act of 1967 2 may be Rule 23 3-type class actions. We conclude that they may not and, therefore, affirm the decision below.
Section 7(b) of ADEA 4 directs that "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. . . ." 29 U.S.C. § 216(b), 5 in turn, provides, in part that
(Emphasis added.) 6
There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b). In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has "opted out" of the suit. 7 Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively "opted into" the class; that is, given his written, filed consent. Sims v. Parke Davis & Co., 334 F.Supp. 774, 780-81 (E.D.Mich.) aff'd 453 F.2d 1259 (6th Cir. 1971) cert. denied 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972). It is crystal clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits. This however, is an ADEA, not an FLSA action.
LaChapelle urges that there are important distinctions between FLSA and ADEA actions which warrant a holding that, while Rule 23 class actions may not be available in the former, they should, nevertheless, be maintainable in the latter. Specifically, he points out that, as we have noted, "With a few minor exceptions the prohibitions of . . . (ADEA) are in terms identical to those of Title VII of the Civil Rights Act of 1964 except that 'age' has been substituted for 'race, color, religion, sex or national origin.' " Hodgson v. First Federal Savings and Loan Ass'n of Broward Co., Fla., 455 F.2d 818, 820 (5th Cir. 1972). Although he recognizes that all of the district courts save one 8 which have been called upon to rule directly upon the question, 9 have held that Rule 23 class actions are unavailable in ADEA suits, he argues that the similarities between that act and Title VII should influence us to hold, in light of the broad remedial purposes of both, that Congress did not mean what it said when it directed that ADEA be enforced in accordance with, among others, Section 16(b) of FLSA. He asks us to conclude, from the failure of ADEA's legislative history specifically to mention, approvingly or disapprovingly, the consent requirement of the third sentence of § 16(b), that Congress did not consider what effect this provision of FLSA would have on Rule 23 class actions and to conclude further that, had Congress foreseen the effect, it would have excluded the offending sentence from § 7(b)'s directive. These things we may not do. The statutory language of ADEA § 7(b) is clear; likewise the language of FLSA § 16(b) is unambiguous. "We are recused from immersion in the sea of legislative history by the general principle that we must not refer to legislative history if the statutory language is clear." Globe Seaways, Inc. v. Panama Canal Co., No. 74-1654, 509 F.2d 969 (5th Cir. 1975). Rather, we must apply the law as it has been written.
Rule 23(c) provides for "opt out" class actions. FLSA § 16(b) allows as class members only those who "opt in." These two types of class actions are mutually exclusive and irreconcilable. 10 Since ADEA § 7(b) adopts 11 FLSA § 16(b), we must hold that only "opt-in" type class actions may be utilized in age discrimination cases. Rule 23 cannot be invoked to circumvent the consent requirement of the third sentence of FSLA § 16(b) which has unambiguously been incorporated into ADEA by its Section 7(b).
Affirmed.
* Rule 18, 5th Cir., See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5th Cir., 1970, 431 F.2d 409, Part I.
1 The district court certified that the issue disposed of by its order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of this litigation. Pursuant to 28 U.S.C. § 1292(b) we granted leave to appeal from the interlocutory order.
2 29 U.S.C. §§ 621-634. Referred to hereafter as ADEA.
4 29 U.S.C. § 626(b).
5 Section 16(b) of the Fair Labor Standards Act, as amended. Cited hereafter as FLSA § 16(b).
6 The emphasized portion of § 16(b) was added to FLSA by the Portal to Portal Act of 1947, § 5(a), 61 Stat. 87, 88, 29 U.S.C. § 216(b). Prior to the Portal to Portal Act, FLSA § 16(b) had allowed both "spurious" class actions and "agent or representative" actions (actions could "be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated"). The 1947 amendment eliminated the agent or representative type action and, although it retained the class action, it specifically required that all employees wishing to have their rights adjudicated "opt in" as parties plaintiff. See generally 3B Moore's Federal Practice, P 23.10(4), pp. 23-2671-74 (2d. ed. 1974). Since the amendment the courts have consistently recognized that, in FLSA actions, one employee may not represent another unless the represented employee has filed a written consent to become a party plaintiff in the court in which the action is brought. E. g., Clougherty v. James Vernon Co., 187 F.2d 288, 290 (6th Cir.) cert. denied 342 U.S. 814, 72 S.Ct. 28, 96 L.Ed. 616 (1951), Sims v. Parke Davis & Co., 334 F.Supp. 774, 780-81 (E.D.Mich.) aff'd 453 F.2d 1259 (6th Cir. 1971) cert. denied 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972).
7 More correctly, class members may opt out only when the action is maintainable under subdivision (b)(3) of Rule 23. When either subdivision (b) (1) or (b)(2) applies, the rule does not allow a class member to avoid the effect of judgment by disassociating himself from the suit. See 3B Moore's Federal Practice P 23.31(3) (2d ed. 1974).
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