Tolliver v. Xerox Corp., s. 44-60

• Decision Date: 14 November 1990
• Docket Number: D,Nos. 44-60,325,s. 44-60
• Parties: 54 Fair Empl.Prac.Cas. 629, 55 Empl. Prac. Dec. P 40,391, 59 USLW 2334 Peter N. TOLLIVER, Leon A. Wiater, Helen A. Fordham, Donald Schaefer, Walter L. Pidek, James Carroll, Lawrence L. Travis, William Brant, James Dammen, Charles Dolcimascolo, John L. Bennett, Joseph G. Golossi, Harold Siebert, Alfred E. Rizzari, Alfonse Oliveri, Paul J. Mittak, and Richard B. Van Maaren, Plaintiffs-Appellants, v. XEROX CORPORATION, a New York Corporation, Defendant-Appellee. Paul F. BRAUN, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee. ockets 90-7201(L), 90-7203, 90-7205, 90-7211, 90-7213, 90-7215, 90-7221, 90-7223, 90-7225, 90-7231, 90-7233, 90-7235, 90-7241, 90-7243, 90-7245, 90-7253, 90-7281, 90-7251.
• Court: U.S. Court of Appeals — Second Circuit

Page 1052

918 F.2d 1052

54 Fair Empl.Prac.Cas. 629,

55 Empl. Prac. Dec. P 40,391, 59 USLW 2334

Peter N. TOLLIVER, Leon A. Wiater, Helen A. Fordham, Donald

Schaefer, Walter L. Pidek, James Carroll, Lawrence L.

Travis, William Brant, James Dammen, Charles Dolcimascolo,

John L. Bennett, Joseph G. Golossi, Harold Siebert, Alfred

E. Rizzari, Alfonse Oliveri, Paul J. Mittak, and Richard B.

Van Maaren, Plaintiffs-Appellants, v. XEROX CORPORATION, a New York Corporation, Defendant-Appellee.

Paul F. BRAUN, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee.

Nos. 44-60, 325, Dockets 90-7201(L), 90-7203, 90-7205,

90-7211, 90-7213, 90-7215, 90-7221, 90-7223,

90-7225, 90-7231, 90-7233, 90-7235,

90-7241, 90-7243, 90-7245,

90-7253, 90-7281, 90-7251.

United States Court of Appeals, Second Circuit.

Argued Sept. 28, 1990.

Decided Nov. 14, 1990.

Donna Marianetti, Rochester, N.Y., for plaintiffs-appellants.

Theodore S. Kantor, Rochester, N.Y., for plaintiff-appellant Braun.

Stevens L. Ingraham, Rochester, N.Y. (Harris Beach & Wilcox, Rochester, N.Y., on the brief), for defendant-appellee.

Samuel A. Marcosson, Washington, D.C. (Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Assoc. Gen. Counsel, Vincent J. Blackwood, Asst. Gen. Counsel, Donna J. Brusoski, Equal Employment Opportunity Commission, Washington, D.C., on the brief), for amicus curiae EEOC.

Steven S. Zaleznick, Cathy Ventrell-Monsees, and Sally Dunaway, Washington, D.C., filed a brief for amicus curiae AARP.

Before NEWMAN, PIERCE and ALTIMARI, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

The primary issue on these appeals is whether the administrative charges, usually called "claims," filed by named plaintiffs in a suit instituted as a class action under the Age Discrimination in Employment Act (ADEA) satisfy the claim filing obligations of individual plaintiffs alleging similar grievances, despite decertification of the class. The issue arises on appeals by eighteen former employees of Xerox Corporation from the February 15, 1990, judgments of the District Court for the Western District of New York (David G. Larimer, Judge) dismissing their ADEA suits against Xerox for lack of timely filing of individual claims with the Equal Employment Opportunity Commission (EEOC). We conclude that the claims filed by the named plaintiffs in the putative class action suffice to permit the individual suits to go forward without filing additional claims. We therefore reverse and remand.

Background

Section 7(d) of the ADEA provides:

No civil action may be commenced by an individual under this section [authorizing civil actions] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed--

(1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 633(b) of this title applies [arising in so-called "deferral states," which have a state statute prohibiting age discrimination], within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.

29 U.S.C. Sec. 626(d) (1988). All parties agree that in the pending cases 300 days is the relevant period for filing a charge with the EEOC.

The eighteen appellants were terminated from Xerox on various dates between November 1, 1981, and July 11, 1983, as a result of extensive reductions in force throughout the company. None of them filed a charge within 300 days of their respective dates of termination. However, on January 7, 1982, within 300 days of the earliest discharge, four other former Xerox employees filed administrative charges with the EEOC and subsequently filed a class action in the District of New Jersey, styled Lusardi v. Xerox Corp., alleging age discrimination by Xerox in connection with the reduction in force. On January 31, 1984, a class was conditionally certified in the Lusardi suit consisting of

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.

See Lusardi v. Xerox Corp., 747 F.2d 174, 175 n. 1 (3d Cir.1984).

ADEA class actions are subject to the "opt in" procedure of section 16(b) of the Fair Labor Standards Act, see 29 U.S.C. Sec. 626(b) (incorporating 29 U.S.C. Sec. 216(b) (1988)); Pandis v. Sikorsky Aircraft Division, 431 F.Supp. 793, 796 (D.Conn.1977). In the Lusardi class action, 1,312 individuals, including the 18 appellants, filed the written consents necessary to opt into the Lusardi class. ¹ Thereafter the Lusardi class was decertified. Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987), modified on petition for mandamus sub nom. Lusardi v. Lechner, 855 F.2d 1062 (3d Cir.1988), decertification adhered to after mandamus, 122 F.R.D. 463 (D.N.J.1988). The notice of decertification advised members of the decertified class that the statute of limitations for their individual lawsuits would be tolled from the date each opted into the Lusardi suit until December 23, 1988. The decertification notice did not advise members of the decertified class with respect to the 300-day requirement for filing an administrative claim.

The 18 appellants then filed individual ADEA lawsuits in the Western District of New York. Judge Larimer granted Xerox's motion to dismiss in each action for failure of each appellant to have filed a claim within 300 days of discharge. The District Judge rejected appellants' argument that they should have the benefit of the timely notice filed by the named plaintiffs in the Lusardi class action. Such "piggybacking," he ruled, should not be allowed for members of a decertified class, though it is allowed for members of a viable class, see Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 52-53 (3d Cir.1989); Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008, 1016 (7th Cir.1988); Bean v. Crocker National Bank, 600 F.2d 754, 759-60 (9th Cir.1979).

Judge Larimer also declined to deem the 300-day period tolled for any of the appellants. As to 17 of the appellants, he noted that the 300-day period had already expired before each opted into the Lusardi class action. As to appellant Alfonse Oliveri, who opted into the Lusardi class action within 300 days of his discharge, Judge Larimer ruled that his failure ever to file an administrative claim barred his suit.

Discussion

The filing requirement of the ADEA was to a large extent modeled after the filing provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e (1988). See EEOC v. Commercial Office Products Co., 486 U.S. 107, 123-24, 108 S.Ct. 1666, 1675-76, 100 L.Ed.2d 96 (1988); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n. 11, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234 (1982). It contains two provisions that function like statutes of limitations. Section 7(e)(1) of the ADEA, 29 U.S.C. Sec. 626(e)(1), incorporating section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. Sec. 255 (1988), establishes a limitations period for filing suit of two years after the cause of action accrues or three years in the case of a willful violation. In addition, section 7(d) of the ADEA sets the time limits for filing an administrative charge with the EEOC--180 days after the alleged unlawful practice occurred, or 300 days after such date in deferral states like New York. See Miller v. International Telephone and Telegraph Corp., 755 F.2d 20, 23-24 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). Section 7(d) also requires a plaintiff to wait 60 days after filing a charge with the EEOC before bringing a suit in the district court.

As originally enacted, section 7(d) provided that a suit could not be commenced "by any individual under this section until the individual has given" at least 60 days notice to the Secretary of Labor, who was then charged with enforcement of the Act. Pub.L. No. 90-202, 81 Stat. 602, 605 (1967) (emphasis added). In 1978, Congress amended section 7(d) to eliminate the requirement that "the individual" bringing suit must have given the administrative notice and provided instead that suit could not be brought until 60 days after "a charge alleging unlawful discrimination has been filed with the Secretary." Pub.L. No. 95-256, Sec. 4(a), 92 Stat. 189, 190 (1978) (emphasis added). That same year the Secretary's ADEA responsibilities were transferred to the EEOC. Reorg. Plan No. 1 of 1978, Sec. 2, 43 Fed.Reg. 19807, 92 Stat. 3781 (1978). In changing the statutory requirement from a charge filing obligation of the individual bringing suit to the more general requirement that "a charge ... has been filed," Congress pointed out that "[f]ailure to timely file the notice ... [was] the most common basis for dismissal of ADEA lawsuits by private individuals" and emphasized that the purpose of the amendment was "to make it more likely that the courts will reach the merits of the cases of aggrieved individuals...." S.Rep. No. 493, 95th Cong., 1st Sess. 12 (1977), U.S.Code Cong. & Admin.News 1978, pp. 504, 515.

Under the current version of section 7(d), courts have regularly held that the timely filing of an administrative charge by a named plaintiff in a class action satisfies the charge filing obligation of...