LEGG, District Judge.
Before the Court is D'Anna's Motion to Proceed with Collective Action under 29 U.S.C. § 216(b) ("motion"). The plaintiff, Ronald D'Anna, brings suit pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and alleges that defendant M/A-COM discriminated against him on the basis of age when he was laid off. D'Anna further alleges that M/A COM, through its Vice President of Sales and Marketing, Peter Manno, discriminatorily discharged other older sales personnel. D'Anna requests this Court (1) to direct the defendant to provide a list of names and last known addresses of all persons similarly situated to the plaintiff; (2) to approve as to both form and content the notice of pendency of action and "consent to join" form appended to the motion; (3) to authorize counsel for the plaintiff to circulate the notice of pendency to all potential opt-in parties; and (4) to establish a bar date cutting off the right of an opt-in party to join this collective action.
The Court has reviewed the papers submitted and in a separate order shall deny plaintiff's motion.
In 1993, plaintiff D'Anna was laid off from his job as a field sales engineer for M/A-COM in the Mid-Atlantic Regional Sales office, which is located in M/A-COM's Eastern Area. D'Anna alleges that Peter Manno, Vice President of Sales and Marketing, and other M/A-COM officials terminated sales personnel within the protected age group with discriminatory intent, in violation of the ADEA. M/A-COM defends the decision to lay off D'Anna, claiming that Ronald Atwater, the Director of Sales for the Eastern Area, made the decision to lay off D'Anna based solely upon D'Anna's performance and the need to cut the payroll.
On March 17, 1994, D'Anna filed a charge of age discrimination with the EEOC. On May 25, 1994, D'Anna filed suit in this Court. On June 15, 1994, D'Anna amended his EEOC charge to include claims of class discrimination. On July 21, 1994, the EEOC closed D'Anna's case file.
II. D'ANNA FILED TIMELY CLASS ACTION CHARGE WITH THE EEOC
A charge alleging unlawful discrimination must be filed with the Equal Employment Opportunity Commission (EEOC) at least sixty days before an individual may file a complaint in court for age discrimination under the ADEA. 29 U.S.C. § 626(d). "[A]n administrative charge must allege class-wide age discrimination or claim to represent a class in order to serve as the basis for an ADEA class action under [29 U.S.C. § 216(b)]." Kloos v. Carter-Day Co., 799 F.2d 397, 400 (8th Cir.1986); accord Naton v. Bank of California, 649 F.2d 691, 697 (9th Cir.1981); see Foit v. Suburban Bancorp, 549 F.Supp. 264, 266 (D.Md.1982).
It is undisputed that D'Anna's initial charge, filed with the EEOC on March 17, 1994, alleged strictly individual claims of age
D'Anna's amended charge, alleging class-wide age discrimination in terminations, relates to his initially filed claim of age discrimination in his lay off, and therefore, pursuant to 29 C.F.R. 1601.12(b), relates back to the date of the initial charge filed on March 17, 1994. Thus, the requirement of filing a charge alleging class-wide claims at least sixty days prior to filing suit has been met by the plaintiffs in this case.
Defendant contends that the relation back provision does not apply in this case because the class action suit in federal court had been filed prior to the filing of the amended administrative charge. To support this argument, defendant relies upon the Fourth Circuit's recent opinion in Balazs. Defendant's reliance is misguided, however, because Balazs is factually, and consequently legally, distinct.
In Balazs, the Fourth Circuit held that a Title VII charge may be amended and relate back, pursuant to 29 C.F.R. § 1601.12(b), "only so long as the charge is a viable one in the EEOC's files, but that where, as here, a right to sue letter has issued, a suit has been instituted and the EEOC has closed its file, there is no longer a charge pending before the EEOC that is capable of being amended." Balazs, 32 F.3d at 157. The Balazs court emphasized that the plaintiff attempted to amend his complaint four months after the EEOC file had closed, the EEOC declined to amend the closed file, and the EEOC opened a new file and assigned the additional charge a new case number.
In contrast to Balazs, D'Anna's EEOC case remained open and viable when he filed his amendment.
III. NO CLASS OF "SIMILARLY SITUATED" POTENTIAL PLAINTIFFS EXISTS
Under the ADEA, plaintiffs may maintain a class action for age discrimination pursuant to 29 U.S.C. § 216(b), a provision of the Fair Labor Standards Act which is incorporated into the ADEA.
29 U.S.C. § 216(b). This provision establishes an "opt-in" scheme, in which plaintiffs must affirmatively notify the court of their intentions to be a party to the suit.
In reviewing and summarizing the case law defining "similarly situated," the district court in Sperling concluded that "courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination." Sperling, 118 F.R.D. at 407 (citing cases).
The courts have uniformly recognized that only a preliminary finding of "similarly situated" potential plaintiffs is necessary to authorize notice to potential class members; nevertheless, they have differed on the appropriate degree of factual support for class allegations prior to authorization of notice. See Severtson, 137 F.R.D. at 266 (citing cases). Although court-authorized notice has been issued based solely upon allegations of class-wide discrimination in a complaint, see Allen v. Marshall Field & Co., 93 F.R.D. 438, 442-45 (N.D.Ill.1982), many courts have required some factual support for the allegations prior to authorization of notice. See, e.g., Schwed v. General Elec. Co., 159 F.R.D. 373, 375-76 (N.D.N.Y.1995); Severtson, 137 F.R.D. at 266; Sperling, 118 F.R.D. at 406.
This Court concludes that the better reasoned cases require the plaintiff to make
In his complaint, D'Anna's allegations of class-wide age discrimination are both broad and vague. D'Anna claims that Peter Manno, Vice President of Sales and Marketing, terminated him on the basis of age and that his job duties were given to a younger person. (Complaint at ¶ 11.) He further alleges that Manno and unnamed "others" acting within the scope of their employment for M/A-COM terminated "several other sales engineers and other sales personnel over the age of 40." (Complaint at ¶ 13.) Finally, D'Anna asserts that "[p]laintiff D'Anna's discharge and all other discharges mentioned in the Complaint were motivated by Defendant's intent to discriminate against Plaintiff D'Anna and other sales personnel on the basis of age." (Complaint at ¶ 14.)
Plaintiff provides meager factual support for these vague allegations. As the plaintiff points out, Manno admits participation in the termination of four employees within the protected age group (including D'Anna) who were employed in the Eastern Area Field Sales Division. (Plaintiff's Reply to Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Proceed with Collective Action under 29 U.S.C. § 216(b) ("Reply"), at Exhibit J, K.) Plaintiff's Motion to Compel additionally lists seven older employees who were allegedly terminated during Manno's tenure.
Based upon the foregoing, plaintiff seeks court-authorized notice to a globally distributed class. Specifically, D'Anna proposes a class consisting of individuals who were, at any time after February 5, 1992,
Although the requirements for court-authorized notice in ADEA class actions are not stringent, the plaintiff has failed to make the relatively modest factual showing required in Schwed, Severtson, and the Sperling. The plaintiff has not pointed to any company plan or policy to target older employees for termination. Plaintiff has done nothing more than identify eleven individuals who are over forty years of age and who may have been terminated during Manno's tenure. The mere listing of names, without more, is insufficient absent a factual showing that the potential plaintiffs are "similarly situated." The plaintiff has the burden of demonstrating that notice is "appropriate." Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674, 678 (S.D.N.Y.), amended by 509 F.Supp. 1352 (S.D.N.Y.1981). In this case, plaintiff has not met this burden.
Accordingly, the Court shall, by separate order, deny plaintiff's Motion to Proceed with Collective Action under 29 U.S.C. § 216(b). The denial of plaintiff's motion is without prejudice. The Court will allow broad discovery. Plaintiff is free to file a new motion to proceed with collective action following such discovery if plaintiff can establish that class treatment is warranted at that time.
Sperling, 118 F.R.D. at 407. For additional applications of the "similarly situated" requirement, see Schwed v. General Elec. Co., 159 F.R.D. 373, 376 (N.D.N.Y.1995) (finding plaintiffs similarly situated when plaintiffs submitted several affidavits describing a ranking system used to determine who was fired in a reduction in force); Ulvin v. Northwestern Nat'l Life Ins. Co., 141 F.R.D. 130, 131 (D.Minn.1991) (finding plaintiffs not similarly situated when company implemented decentralized reduction plan); Church, 137 F.R.D. at 303-04 (finding factual support for plan of discrimination in a document reflecting company cost-savings from terminations of employees, in combination with allegations of a "preconceived plan"); Walker v. Mountain States Tel. and Tel. Co., 112 F.R.D. 44, 47 (D.Colo.1986) (limiting class to those retiring under the same Supplemental Income Pension Plan); Palmer v. Reader's Digest Ass'n, 1986 WL 11458, 42 Fair Empl.Prac.Cas. (BNA) 212, 214 (S.D.N.Y.1986) (holding that there needs to be "some identifiable nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged discrimination," finding one-year restructuring process to be such a nexus).