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HYMAN v. FIRST UNION CORP.

August 12, 1997

SONDRA W. HYMAN, et al., Plaintiffs,
v.
FIRST UNION CORP., et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on the motion of plaintiffs to maintain their claims as class, collective, and consolidated actions and to designate issues for the common issue trial scheduled for October 6, 1997. Upon consideration of the written submissions, oral arguments, and the relevant law, the court will grant plaintiffs' motion to maintain both proposed collective actions under the ADEA. The court will rule separately on the remaining proposed classes.

 I. Background

 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.

 Thus to pursue a section 216(b) collective action, the claimants must be similarly situated. Plaintiffs argue that they have narrowed the proposed collective action so as to group together only similarly situated employees. First Union strongly disagrees.

 There have been numerous cases that discuss under what circumstances a collective action in a termination case is appropriate. During oral arguments, plaintiffs identified ten factors that have been used by courts to evaluate proposed collective actions. While the court agrees with defendants that the inquiry cannot simply proceed as a checklist to see which party gets the most marks, the factors do provide an appropriate framework for the analysis.

 The first set of factors involve an examination of the alleged activities of defendant. If there is evidence that the alleged discrimination was part of a institution wide practice, such evidence would support the use of a collective action. In support of certification, plaintiffs have outlined what they allege to be a centralized decision-making process that resulted in the discrimination. Acknowledging that individual managers did have discretion when deciding whom to retain, plaintiffs argue that a few central individuals were responsible for the ultimate discrimination. Plaintiffs allege that high-level managers on First Union's due diligence team determined how many positions existed; top executives chose the leaders who decided which First American employees would fill the positions; defendant managers selected the sources of information about First American employees that would be available to the transition team leaders; the interviewers were centrally trained and given several pages of stock questions and a standardized form on which to evaluate interviewees; First Union executives set the timetable for interviews and placement decisions; First Union prepared information about the selection process for all First American employees; and First Union's Human Resources personnel reviewed all the decisions.

 Although First Union characterizes this description of events as a "fable," the court finds that plaintiffs have presented evidence that provides a reasonable basis for crediting plaintiffs' assertion that the alleged discrimination was not a random occurrence but was carried out by several managers at the direction of management. Throughout its analysis, First Union ignores the significance of the fact that the terminations all resulted from two company-wide RIFs that occurred as a result of First Union's acquisition. In Owens v. Bethlehem Mines Corp., 108 F.R.D. 207, (S.D.W.Va. 1985), the existence of a single RIF was sufficient for the court to find that proposed members, who had lost their positions with six different divisions of the company, were similarly situated. Id. at 212. As in this case, the defendant employer had argued that there was no confluence in personnel decision-making between the divisions because the decision-makers reported to different departments. Id. at 210. ...


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