United States District Court, N.D. Illinois, Eastern Division
BARRY H. DAYTON, individually and on behalf of others similarly situated, Plaintiff,
OAKTON COMMUNITY COLLEGE, MARGARET LEE, JOIANNE SMITH, MICHAEL ANTHONY, KARL BROOKS, MAYA EVANS, TOM HAMEL, COLETTE HANDS, BONNIE LUCAS, and MUM MARTENS, Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
November 2014, Defendant Oakton Community College announced
that, as of July 1, 2015, it would no longer employ
annuitants of a pension plan referred to as the State
Universities Retirement System (SURS). Plaintiff Barry
Dayton, a former part-time faculty member at Oakton, was one
of the employees affected by the announced policy. He has
sued Oakton, on behalf of himself and a proposed class of
similarly situated part-time and adjunct faculty of the
college, alleging that the implementation of the policy
violates the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. §623, as well as 42 U.S.C. § 1983
and section 5 of Article XII of the Illinois Constitution.
Dayton has named the following individuals as defendants, in
addition to Oakton: Margaret Lee, Oakton's president at
the time the policy was enacted; Joianne Smith, Oakton's
current president and member of the president's advisory
council at the time the policy was enacted; and Michael
Anthony, Karl Brooks, Maya Evans, Tom Hamel, Collette Hand,
Bonnie Lucas, and Mum Martens, the other members of Lee's
advisory council at the time the policy was enacted. Two
other employees affected by the policy have filed individual
suits against Oakland, and their cases have been consolidated
with this one.
has moved for collective certification of his ADEA claims
under 29 U.S.C. § 626(b) and for class certification of
his other claims under Federal Rule of Civil Procedure 23.
Defendants contend that Dayton cannot meet the certification
standards under either the ADEA or Rule 23. For the reasons
stated below, the Court grants Dayton's motion.
is a two-year community college that employs full-time,
part-time, and adjunct faculty to teach the courses it
offers. Adjunct faculty are those faculty who teach
twenty-seven or fewer "lecture hour equivalents"
(LHEs) per academic year. They are covered by a collective
bargaining agreement (CBA) between the college and the Oakton
Community College Adjunct Faculty Association. Faculty who do
not work full time and are not covered by the CBA (because,
for example, they teach six or fewer LHEs per academic year)
are considered "part-time, " rather than adjunct,
faculty. Neither part-time nor adjunct faculty members are
eligible for tenure, and the college retains sole discretion
in offering them course assignments on a term-by-term basis.
In practice, the deans of individual college divisions, with
the assistance of department chairs and coordinators, assign
courses to adjunct and part-time faculty after the faculty
members submit course request forms. A number of factors
determine how courses are assigned, including the courses
offered in a given academic term, the qualifications of the
faculty requesting courses, priority assignment rights, and
department needs. Once adjunct and part-time faculty members
receive course assignments, they can earn additional
compensation by engaging in other activities at the college,
such as tutoring or attending meetings.
a pension plan that provides retirement benefits to eligible
individuals who are or were employed by covered public
Illinois state universities or community colleges. Oakton is
one of the public community colleges covered by SURS. A
number of Oakton's part-time and adjunct faculty members
are retirees who previously were employed by Oakton or other
covered state universities and began drawing an annuity from
SURS upon their retirement.
law places earnings limitations on SURS annuitants who return
to work for a covered college or university after retirement.
Illinois' so-called "Return to Work" law
prohibits SURS annuitants who retire prior to age 60 from
receiving monthly compensation in an amount greater than
their monthly base SURS annuity. If the employee does receive
compensation greater than the amount of the monthly annuity,
the employee is not entitled to the portion of the annuity
provided by employer contributions for that month. See 40
Ill.Comp. Stat. 5/15-139(b). An annuitant who retires at age
60 or over is limited to earning compensation that, when
combined with his or her annual retirement annuity, does not
exceed his or her highest annual earnings prior to
retirement. Id. If an annuitant's compensation
is greater than the difference between his or her highest
annual earnings prior to retirement and his or her annual
retirement annuity, the portion of the monthly retirement
annuity provided by employer contributions is reduced by the
amount that the compensation exceeds that difference.
Id. In 2012, Illinois amended the Return to Work law
to place additional earnings limitations on SURS annuitants
who return to work for covered colleges and universities.
Under the amended law, an employer must pay a financial
penalty to SURS if the employer employs an "affected
annuitant" after August 1, 2013. See Id. §
15-139.5. An affected annuitant is any SURS annuitant who (1)
returns to work for a covered college or university and earns
compensation in excess of 40% of his or her highest annual
earnings prior to retirement and (2) receives an annualized
SURS annuity of at least $10, 000. Id. §
15-139.5(b). The law obligates employers to determine whether
its employees are affected annuitants.
passage of the amended Return to Work law, Oakton decided
that it would not re-employ any SURS annuitants who became
affected annuitants under the law so that it could avoid
paying the penalty for employing affected annuitants.
Oakton's human resources department monitored the
employment and earnings of the SURS-annuitant employees to
ensure that none of the annuitants it employed had exceeded
the 40% earnings limitation. According to Oakton, the
monitoring process was burdensome, and despite the efforts of
the human resources department, the college inadvertently
employed three affected annuitants after September 1, 2014.
As a result of employing the affected annuitants, Oakton was
assessed a penalty of approximately $75, 000. After Lee, who
was Oakton's president at the time, learned that the
college would be assessed the penalty, she met with her
advisory council. Lee and the council members determined
that, effective July 1, 2015, the college would no longer
employ SURS annuitants, whether they were
"affected" or not. Martens, the college's
executive director of human resources, announced the
college's decision on November 13, 2014 in an e-mail to
all SURS annuitants who worked for the college. According to
Oakton, the new policy would not only prevent the assessment
of penalties for employing affected annuitants but would also
eliminate the burden of monitoring all annuitants to
determine which ones were "affected." Approximately
79 faculty and staff members became ineligible for employment
at Oakton as a result of the college's decision.
undisputed that Oakton's decision not to employ SURS
annuitants after July 1, 2015 was not based on any
annuitant's job performance, class schedule, or
availability to teach classes. Rather, the decision not to
re-employ SURS annuitants was based on their status as SURS
annuitants. According to Dayton, Lee and the advisory council
members knew that numerous adjunct and part-time faculty
members who were SURS annuitants could never become
"affected" annuitants due to caps on adjunct
compensation and on the number of LHEs adjunct faculty
members could teach but nonetheless determined not to
re-employ any SURS annuitants at all.
asserts that defendants' decision to terminate the
annuitants' employment because of their status as
annuitants violated the ADEA and the Illinois Constitution.
He has moved to certify the following group as an ADEA
collective class and Rule 23 class: "All part time and
adjunct faculty who were denied employment at Oakton
Community College as the result of its policy to not employ
or re-employ State Universities Retirement System annuitants
and who are not 'affected annuitants' pursuant to 40
ILCS 5/15-139.5(b)(2)." PL's Br. in Supp. of Class
Certif. at 1. Defendants maintain that class certification
would be inappropriate because each purported class
member's claim is different from the claims of other
class members and requires individualized assessment.
ADEA authorizes plaintiffs to bring enforcement actions using
the procedures provided in the Fair Labor Standards Act, 29
U.S.C. § 216. See 29 U.S.C. § 626(b).
Under the FLSA, an employee may bring a so-called
"collective action" against any employer on behalf
of himself "and other employees similarly
situated." Id. § 216(b). As the Seventh
Circuit has explained, the only significant difference
between a collective action and a Rule 23 class action
"is that in a collective action the members of the class
(of the 'collective') must opt into the suit to be
bound by the judgment or settlement in it, while in a class
action governed by Rule 23(b)(3) (a class action seeking
damages) they must opt out not to be bound."
Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771
(7th Cir. 2013). Although the Seventh Circuit has not
specified the standard that governs certification of a
collective action under the FLSA or ADEA, the court has noted
that there is no "good reason to have different
standards for the certification of the two different types of
action" and that "the case law has largely merged
the standards, though with some terminological
differences." Id. at 772.
certification under Rule 23 is appropriate if the plaintiff
seeking certification meets all the requirements of Rule
23(a) and his case falls within at least one of the
categories identified in Rule 23(b). Arreola v.
Godinez,546 F.3d 788, 794 (7th Cir. 2008). A purported
class satisfies the requirements of Rule 23(a) if: "(1)
the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common
to the class; (3) the claims or defense of the representative
parties are typical of the claims or defenses of the class;
and (4) the representative parties will fairly and adequately
protect the interests of the class." Fed.R.Civ.P. 23(a).
In this case, Dayton maintains that the purported class meets
the requirements of Rule 23(b)(3), which requires questions
of law or fact common among class members to predominate over
questions affecting only individual ...