the institutions employed the plaintiffs bringing this action: First American Metro Corp. and it subsidiary Meritor Savings, F.A. Plaintiffs allege that as a part of the acquisition process, First Union selected incumbents for termination that were disproportionately over 40 years old, black, and of foreign origin. Plaintiffs then aver that although First Union had promised the displaced employees "priority consideration" for other positions within the institution, First Union disregarded that promise and severed most of the displaced employees. Finally, plaintiffs allege that the employees hired to replace those laid off were almost exclusively under 40 and white.
Defendants, in contrast, characterize the events in 1992 and 1993 as a "benevolent incursion that rescued a failed institution." Def. Brief at 4. Because time was of the essence, many of First American's policies were quickly changed so the failing organization could be saved. While employees were displaced, there was no illegal discrimination, and certainly no pattern or practice of discrimination that was centrally instituted, according to defendants.
II. Standard of Review
The evidence plaintiffs employ here for purposes of class and collective action certification is in large part the same evidence they will employ to prove the merits of their case at trial: evidence that First Union discriminated in its employment practices. The class and collective action certification inquiry, however, does not go to the merits of plaintiffs' case. Nor does this court have the authority to conduct a preliminary inquiry into the merits of plaintiffs' proposed case to determine if the proposed groups and classes should be certified. Wagner v. Taylor, 266 U.S. App. D.C. 414, 836 F.2d 578, 587 (D.C. Cir. 1987). This court must then temper the intensity of its review of plaintiffs' evidence.
In reviewing the evidence underlying plaintiffs' claims, this court will only determine if that evidence establishes a reasonable basis for crediting plaintiffs' assertions. That review will subject plaintiffs' evidence to a rigorous analysis but that analysis will not extend to the merits of plaintiffs' claims. General Tel. Co. v. Falcon, 457 U.S. 147, 161, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982).
Any more extended inquiry into plaintiffs' evidence is both unnecessary and ill-advised. First, a preliminary inquiry is sufficient to determine the propriety of certification. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974); Wagner, 836 F.2d at 587. Second, an extended inquiry could have the effect of removing from the province of the jury those issues that an intensive review would necessarily resolve. Eisen, 417 U.S. at 178. The court sees no reason to venture so far into the thicket of proof presented here when any resulting findings would only leave the court stranded where it does not belong.
If plaintiffs supply sufficient evidence to provide a reasonable basis for concluding their classes satisfy Rule 23's requirements or that the members of the proposed collective actions are similarly situated, plaintiffs will have proven their proposed classes would promote efficiency and should be certified.
III. Collective Action Group One: Terminated Exempt Line2 Employees Alleging Age Discrimination under the ADEA
Plaintiffs have proposed that a collective action be maintained under the ADEA for all former exempt line employees of First American who were 40 or older when terminated (not for cause) by First Union between May 17, 1993 and June 30, 1994.
Congress enacted the ADEA to end discrimination in the workplace, Lorillard v. Pons, 434 U.S. 575, 584, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978), by "promoting employment of older persons based on their ability rather than age . . . [and] prohibiting arbitrary age discrimination in employment." 29 U.S.C. § 621(b)(1985). Discrimination because of age is the only conduct proscribed by the ADEA. See Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983), cert. denied, 467 U.S. 1215, 81 L. Ed. 2d 364, 104 S. Ct. 2658 (1984).
The relief provisions of the ADEA are found in section 7(b) which states that the ADEA shall be enforced by the "powers, remedies and procedures" of the FLSA. 29 U.S.C. § 626(b). Specifically, the ADEA incorporates section 16 of the FLSA, 29 U.S.C. § 216(b) which states in pertinent part:
An action to recover the liability prescribed in [this Title] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.