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BEHR v. DRAKE HOTEL

April 24, 1984

ESTHER BEHR, HELEN GRILL, BIAGINA MATARRESE, A. CONNIE CHREPTYK AND DANIEL L. MCCORMICK, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
DRAKE HOTEL, D.H. VENTURE, A PARTNERSHIP, EDWARD ROSS, JERROLD WEXLER, HILTON INTERNATIONAL CO., A DELAWARE CORPORATION, AND VISTA INTERNATIONAL (ILLINOIS) INC., AN ILLINOIS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge:

  MEMORANDUM OPINION AND ORDER

Plaintiffs Esther Behr, Helen Grill, Biagina Matarrese and Daniel McCormick sued the Drake Hotel, D.H. Venture, Edward Ross, Jerrold Wexler, Hilton International Co. and Vista International, Inc. pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq ("ADEA"). Presently before the Court are a motion to dismiss the complaint by defendants' Venture, Ross and Wexler and plaintiffs' motion to approve class notice. For reasons set forth below, defendants' motion to dismiss is denied; plaintiffs' motion is granted in part.

Motion to Dismiss

Defendants Venture, Ross and Wexler have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1), asserting that they were not plaintiffs' "employers" under 29 U.S.C. § 630(b) after December 31, 1980. A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

  29 U.S.C. § 630(b) defines employer as a person
  engaged in an industry affecting commerce who has
  twenty or more employees for each working day in
  each of twenty or more calendar weeks in the
  current or preceding calendar year. . . . The term
  also means (1) any agent of such a person . . .

Whether a party is an "employer" involves factual considerations such as the amount of day-to-day participation, control or supervision he or she exercises. Riojas v. Seal Produce, Inc., 82 F.R.D. 613, 618 (S.D.Tex. 1979). The totality of the circumstances must be examined to determine whether an employer-employee relationship exists. EEOC v. Rinella & Rinella, 401 F. Supp. 175, 180 (N.D.Ill. 1975).

These defendants have submitted an affidavit which asserts that they had no control, involvement, direction or responsibility for management of the Drake Hotel, including employment matters, after December 31, 1980. On that date, the Drake Hotel, its operations and management responsibilities were sublet to the Hilton International Corporation, which in turn assigned its rights to the Vista International Corporation, a wholly-owned subsidiary. They add that neither Hilton nor Vista can be considered their agent.

As a prior opinion of this Court observed, "[w]hether Defendants, or any of them, may be considered an employer under the ADEA depends on a number of considerations and is a question more appropriately addressed when the record is more complete." Behr v. Drake Hotel, No. 82 C 5551 slip op. at 2 (May 31, 1983) (footnote omitted). We believe that the identical conclusion is warranted at present. Plaintiffs point out that depositions of Ross and Wexler have not yet been taken. Notwithstanding defendants' affidavits, the exact nature of the relationship between Hilton, Vista and defendants remains disputed. Therefore, it is premature for this Court to consider the totality of the circumstances of plaintiffs' relationship to these defendants. Depositions of Ross and Wexler may reveal that they participated in the affairs of the hotel after December 31, 1980.*fn1 Plaintiffs claim that these defendants own the hotel building and lease the real property; defendants state that Hilton's rights as sublessee include all of Venture's leasehold estate and interest in the hotel. Dismissal of the complaint as to Venture, Ross and Wexler would therefore be unwarranted at this point.

The Motion to Approve Class Notice

Plaintiffs' complaint alleges that defendants have engaged in a course of conduct designed to discriminate against them and other Drake employees because of their age, including terminations, forced early retirement, salary reductions and displacement from previously assigned duties. Behr, Grill, Matarrese and McCormick were terminated from employment. On May 13, 1982, plaintiffs filed a timely charge of discrimination with the Equal Employment Opportunity Commission. At present, plaintiffs seek approval of a proposed class notice to be sent to potential class members, pursuant to 29 U.S.C. § 626(b) and 29 U.S.C. § 216(b).*fn2

Since the ADEA incorporates the enforcement procedures of the Fair Labor Standards Act, 29 U.S.C. § 216(b), the class action procedures set forth in Fed.R.Civ.P. 23 do not apply to ADEA class actions. LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975); Allen v. Marshall Field & Co., 93 F.R.D. 438, 441 (N.D.Ill. 1982); Locascio v. Teletype Corp., 74 F.R.D. 108, 111 (N.D.Ill. 1977). Only plaintiffs who have "opted in" to the class of ADEA plaintiffs by filing a written consent-to-join with the court are bound by the ultimate judgment. Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977). Unlike Rule 23, 29 U.S.C. § 216(b) contains no provision which prohibits or permits the sending of notice to potential claimants. But the Seventh Circuit recently held that district courts have the power to authorize notice by an ADEA plaintiff or his or her counsel to potential class members. Woods v. New York Life Insurance Co., 686 F.2d 578 (7th Cir. 1982). The Seventh Circuit emphasized, however, that such notice may not appear on court letterhead or over the signature of a judicial officer. Id. at 581. Any class notice in the instant case, therefore, may not appear on judicial letterhead nor be signed by a judicial officer.

Defendants claim that class notice is not appropriate, because plaintiffs have not shown that there exists a group of employees who are similarly situated to them. They assert, inter alia, that the present plaintiffs were employed in different departments, in different positions and that each claim involves unique facts. Moreover, discovery to date has not revealed, in defendants' view, any general discriminatory policies or practices.

  alleged a campaign of discrimination by Marshall
  Field, which transcends minor differences in
  their levels of management responsibility,
  geographic location, and dates of alleged
  discriminatory actions . . . the focus of a trial
  in this case will be the allegation that the
  defendant orchestrated ...

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