United States District Court, Northern District of Illinois, E.D
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,
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
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
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'
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.
To approve an ADEA class, we must consider whether the
plaintiffs are similarly situated to other employees who are
potential class members. Sussman v. Vornado, Inc., 90 F.R.D.
680, 684 (D.N.J. 1981). Thus, in Sussman, the court allowed
employees who had been terminated
in the wake of a strike to opt-in to the case. But as another
court observed, plaintiffs need only show that their positions
are similar; they need not be identically situated to
potential class members. Riojas v. Seal Produce, Inc., 82
F.R.D. 613, 616 (S.D.Tex. 1979). In Allen v. Marshall Field &
Co., 93 F.R.D. 438 (N.D.Ill. 1982), defendant argued that
because current plaintiffs occupied varying positions in its
corporate structure at different stores and suffered alleged
discriminatory actions on different dates, that they were not
similarly situated to potential plaintiffs. The court rejected
these arguments, holding that the plaintiffs
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 a "campaign to rid
[itself] of its older employees because of their
Id. at 443. The court added that differences in the adverse
consequences individual employees suffered were relevant
primarily in calculating damages.
We agree with the approach Allen adopted. Plaintiffs have
alleged that defendants engaged in a course of conduct designed
to discriminate against Drake employees because of their age.
Plaintiffs are similarly situated to other potential class
members as required by 29 U.S.C. § 216(b).
Defendants have raised a number of objections to the form of
the proposed class notice. The most significant dispute, in
our view, concerns the time periods in the class notice.
Plaintiffs would send notice to all employees over age forty
who were or are employed at the Drake from January 1, 1981 to
the present. Defendants maintain that pursuant to
29 U.S.C. § 626(d)(2) the only potential class members who may opt in are
persons whose claims arose within a 300-day period prior to the
filing of charges by the present plaintiffs with the EEOC.*fn3
Thus, since plaintiffs filed charges with the EEOC on May 10,
1982, defendants assert that only individuals whose claims
arose on or after July 18, 1981, should receive class notice.
And because plaintiffs allegedly have not established a
discriminatory course of conduct continuing to date, defendants
argue that the time period set forth in class notice should not
extend beyond April 13, 1982.
Courts have applied the 300-day period contained in
29 U.S.C. § 626(d)(2) to ADEA class actions, barring potential
class members from opting into lawsuits if the allegedly
discriminatory acts they suffered occurred more than 300 days
prior to the filing of charges by named plaintiffs. E.g. Frank
v. Capital Cities Communications, 509 F. Supp. 1352 (S.D.N.Y.
1981); Geller v. Markham, 19 F.E.P. 1622, 1623 (D.Conn. 1979).
But as the Seventh Circuit has observed, the time requirements
in § 626(d) are not jurisdictional prerequisites to suit, but
rather, are subject to equitable modification. Kephart v.
Institute of Gas Technology, 581 F.2d 1287, 1288 (7th Cir.
1978). Thus, Kephart held that an employer's failure to post
notice of ADEA rights tolled the notice limitation in § 626(d).
Id. at 1289.
We decline to hold, at this time, that only those potential
class members whose claims arose on or after July 17, 1981,
may opt into the case. Notice of this action to all potential
class members is appropriate, despite the fact that we may
later bar some of them from participating in this case. While
factual inquiries concerning the possibility
of equitable modification of the limitation period in § 626 may
be necessary, this does not preclude sending potential class
members notice of the action. Allen v. Marshall Field & Co., 93
F.R.D. 438, 445 (N.D.Ill. 1982). A decision concerning whether
plaintiffs have established a continuing course of
discriminatory conduct is likewise premature, and we therefore
decline to order the adoption in the class notice of the time
periods urged by defendants.
Most of defendants' other objections to the form of the
class notice are meritless. Limiting notice to employees who
worked in only three departments of the Drake and who were
fired or forced to resign because of their age would unduly
limit the scope of the class. We have already determined that
differences among employees with respect to employment
responsibilities or discriminatory injuries suffered does not
mean that they are so dissimilarly situated as to render
inappropriate opting into this case. To limit notice as
defendants suggest would undermine this conclusion.
Moreover, plaintiffs' proposed notice is addressed to
individuals who were over forty years old as of January 1,
1981. Defendants would address the notice to only include
those individuals age forty to seventy, consistent with
29 U.S.C. § 631. In the notice, plaintiffs have defined the class
to include employees who were between forty and seventy as of
January 1, 1981. The remaining references to the class in the
notice shall be changed to include employees who were between
forty and seventy as of January 1, 1981.
The parties dispute to whom the notice should be sent in
another aspect. Plaintiffs would send notice to persons
employed by all defendants, while defendants assert that the
notice should be limited to persons who were employed by the
Drake. While we denied the motion to dismiss of defendants
Venture, Ross and Wexler, notice need not be sent to all
employees of all these defendants. Rather, notice shall be
sent to persons who presently work or worked during the
relevant time periods at the Drake Hotel and who are or were
employed by any of the defendants. This would thus encompass
an individual who may have worked or presently works at the
Drake Hotel but who was or is employed not by the Drake but by
one of the other defendants.
There is no need, moreover, to include a description of
defendants' counterclaim against Behr and Grill in the class
notice. This information is not related to a charge of age
discrimination and could conceivably intimidate potential
class members from opting into the class. Finally, we agree
with defendant that an additional clause shall be inserted in
paragraph six of the notice. The first sentence of paragraph
six shall be changed to read as follows:
[i]f you do not file a consent form and join in
this case, you will not be entitled to receive
any back wages or other relief from defendants if
it is determined that any plaintiffs are entitled
to relief in this case.
Accordingly, the motion to dismiss of defendants Venture,
Ross and Wexler is denied. Plaintiffs' motion to approve class
notice is granted in part.*fn4 On or before June 1, 1984,
defendants shall submit to plaintiffs a list of all present
and former employees at the Drake Hotel who were between the
ages of forty and seventy and employed by defendants on or
after January 1, 1981, to the present. Plaintiffs shall submit
a draft class notice in conformance with this opinion on or
before June 15, 1984. This cause is set for status in open
court on July 6, 1984, at 10:00 a.m. It is so ordered.