Amicus Curiae Brief — Xerox Corp. v. Tolliver

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No. 90-1398

In THE

Supreme Court of the United States

OcToser TERM, 1990

XEROX CORPORATION, a New York Corporation,

* Petitioner,

Perex N. Toll, Leon A. WATER. HELEN A. Forp-

HAM, DONALD Sc AER. WALTER L. Pipex, JAMES

CARROLL, LAWRENCE L. TRAVIS, WILLIAM BRANT, JAMES

DAMMEN, CHARLES DoLCIMASCOLO, Joh L. BENNETT,

Josurn G. GoLossi, HAROLD Sterert, AL E. RIZzZARI,

ALPONSE OL WII, PAUL J. Mrrrak, RICHARD B. VAN

MAAREN, and Pati. F. Braun,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION TO FILE BRIEF AS AMICUS CURIAE AND

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

Rosert E. WILLIAMS

Doucias S. MCDOWELL

GAREN E. Dopce *

McGuiness & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

* Counsel of Record

Wueee - Cree Perrine Co.. Inc. « 760-0006 . Waenimorow. O.C. 20001

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In THE

Supreme Court of the Anited States

Ocromm Term, 1990

No. 90-1398

XEROX CORBQRATION, a New York Corporation,

Petitioner,

Perer N. Touiiver, Leon A. WiaTeR, HELEN A. Forp-

HAM, DONALD SCHAEFER, WALTER L. Pipex, JAMES

CARROLL, LAWRENCE L. TRAVIS, WILLIAM BRANT, JAMES

DAMMEN, CHARLES DoLCIMASCOLO, JoHN L. BENNETT,

Josern G. Got oss, HAROLD Signert, ALPreD E. Rizzari,

ALPONSE OLIVERI, Pau J. Mittak, RICHARD B. VAN

MAAREN, and PAUL F. Braun,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION OF THE EQUAL EMPLOYMENT ADVISORY

COUNCIL FOR LEAVE TO SUBMIT BRIEF AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

To the Honorable, the Chief Justice and the Associate

Justices of the United States Supreme Court:

Pursuant to Rule 37 of the Rules of this Court, the

Equal Employment Advisory Council (EEAC) respect-

fully moves this Court for leave to file the accompanying

brief amicus curiae in support of the Xerox Corpora-

tion's petition for a writ of certiorari. Respondents Tol-

liver, et al., have refused consent. In support of this

motion, EEAC by the following shows that its brief

brings relevant matter to the attention of this Court that

has not been (or will not be) presented by the parties.

1. EEAC is a nationwide association of employers and

trade associations organized in 1976 to promote sound

ious equal employment laws, including the Age Discrim-

ination in Employment Act of 1967 (ADEA), 29 U.S.C.

$621 et seg. the statute at issue herein. Many EEAC

members currently face difficult financial times, and have

charges with the Equal Employment Opportunity Com-

mission (EEOC), as long as their suits are based on

“a” single timely filing, even if that filing took place

several years before the plaintiffs’ lawsuits. Under such

an ill-founded rule, employers would never know the full

number of plaintiffs, and would have to treat every case

as a potential class action.

3. Because of its interest in the application of the

nation’s equal employment laws, EEAC has filed amicus

briefs in many cases before this Court, including a num-

ber involving the proper interpretation of the ADEA.

See, ¢.g., Public Employees Retirement System of Ohio

v. Betts, 109 S. Ct. 2854 (1989) ; McLaughlin v. Richland

Shoe Co., 108 S. Ct. 1677 (1988); Western Air Lines,

Inc. v. Criawell, 105 8. Ct. 2743 (1985); and Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).

In addition to filing a brief in support of Xerox's peti-

tion for reconsideration in the Second Circuit below,

EEAC also has filed briefs with other Courts of Appeals

on the issue of piggybacking under the ADEA in Ander-

son v. Montgomery Ward & Co., Inc., 852 F.2d 1008

(7th Cir. 1988), and Gray v. Phillips Petroleum Co., 858

F.2d 610 (10th Cir. 1988) (issue not reached by court).

Thus, EEAC has an interest in, and a familiarity with,

the concerns presented in Xerox's petition herein.

4. Because of its significant experience, EEAC is

uniquely situated to brief this Court on issues beyond

those of concern to the immediate parties. Indeed, EEAC’s

brief presents the relevant concerns of the business com-

munity and demonstrates the significance of this case

generally. Accordingly, the brief brings relevant matters

to the attention of the Court that will not be brought to

the Court’s attention by the parties.

WHEREFORE, it is respectfully moved that EEAC

be granted leave to file the accompanying brief amicus

curiae in this case.

Respectfully submitted,

Rosert E. WILLIAMS

Dou. as S. MCDOWELL

GAREN E. Dopcs *

McGuiness & WILLIAMS

1015 Fifteenth Street, N.W.

March 15, 1991 * Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

STATEMENT OF THE CASE .

SUMMARY OF REASONS FOR GRANTING THE

Pe

REASONS FOR GRANTING THE WRIT

I. THE SECOND CIRCUIT'S RULE—PERMIT-

TING PLAINTIFFS TO PURSUE INDIVID-

UAL CLAIMS OF DISCRIMINATION UNDER

THE SO-CALLED “SINGLE-FILING” RULE

EVEN THOUGH THEY HAVE FAILED TO

FILE TIMELY EEOC CHARGES OR PROP-

ERLY OPT INTO AN ACTION BROUGHT

BY PLAINTIFFS WHO FILED TIMELY

CHARGES—CONFLICTS WITH THE PLAIN

LANGUAGE OF THE ADEA AND IMPROP-

ERLY DEPARTS FROM THE RULES

ADOPTED BY COURTS IN OTHER CIR-

6 — —— ů ůůůůů ů ů ů ů

— — A Timely Charen,

The Second Circuit's Single-Filing Rule Con-

flicta With The Plain Language Of The

ADEA's Filing Requirements

ß — Herein, And

The Single-Filing Rule Should Not Be Used

To Obviate The ADEA's a yee

Language

C. The Second Cireuit's Rule 8 De-

parts From, And Indeed Conflicts With, The

Rules Adopted In Other Circuits _.

COGENT POLICY REASONS SUPPORT THIS

COURT'S ACCEPTANCE OF THIS CASE

FOR REVIEW, AND COMPEL REJECTION

OF THE SINGLE-FILING RULE FOR THESE

UNTIMELY PLAINTIFFS .....

(i)

— — —

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Montgomery Ward & Co., 40 E.P.D.

43,428, rev'd on other grounds and withdrawn,

681 F. Supp. 1546 (N.D. Ill. 1986), aff'd, 852

F.2d 1008 (7th Cir. 1988) 0... 5

Bean v. Crocker National Bank, 600 F.2d 754 (9th

Cir. 1979) . 14

Edwards v. Keiser Aluminum and Chemical Sales,

515 F.2d 1195 (5th Cir. 197 7,17

Foster v. CBS Records, Inc., 109 F. R. D. 168 (S.D.

/ eee See 5.9

Foster v. Gueory, 655 F.2d 1319 (D.C. Cir. 1981). 14, 15

Kloos v. Carter-Day Co., 799 F.2d 397 (8th Cir.

1986) 6. 7. 10, 14. 16, 18

Lockhart v. Westinghouse Credit Corp., 879 F.2d

See - 14

Lusardi v. Xerox Corp., 99 R. b. 80 (D.N.J.

1983), appeal dismissed, 747 F.2d 174 (3d Cir.

1984), 118 F.R.D. 351 (D.N.J. 1987), remanded

with directions sub nom. Lusardi v. Lechner, 855

F.2d 1062 (3d Cir. 1988), reaff'd on remand, 122

F. R. D. 463 (D.N.J. 1988) passim

McCorstin v. United States Steel Corp., 621 F.2d

749 (Sth Cir. 1980) 7 11. 12

Mistretta v. Sandia Corp., 639 F.2d 888 (10th Cir.

aS a 13, 14

Price v. Maryland ‘Casualty Co., 2 FR b. 614

(S. D. Miss. 1972), aff'd, 561 F.2d 609 (5th Cir.

1977) . a

Rogers v. — Research & Engineering Co., 550

F.2d 834 (3d Cir. 1977), cert. denied, 434 U.S.

1022 (1978) . 15

Zipes v. Trans World Airlines, Ine. 455 US. 385

ae „„ 1

Statutes:

Age Discrimination in a Act of 1967,

29 U.S.C. § 621, et seq. passim

29 U.S.C. § 626(b) ........... 10

r e

. — 9

iv

TABLE OF AUTHORITIES—Continued

Page

eee ee ee ee oom,

29 USC. § 216(b) _ „„ a 8}

Title VII of the Civil Rights Act of 1964, 42 U.S.C

pe ddl: & a — Ghee

Fed. R. Civ. P. 23 0 10

Legislative History

H.R. Conf. — wes lat Seas. 12

(1978) .. i 12, 15

In THE

Supreme Court of the Anited States

Octoser Term, 1990

No. 90-1398

Xerox CoRPORATION, a New York Corporation,

* Petitioner,

Perer N. Touiiver, Leon A. Wiater, HeLen A. Forp-

HAM, DonNALD ScHagFreR, WALTER L. Pipex, James

Cannot. Lawrence L. Travis, WILLIAM Brant, James

DAMMEN, CHARLES DoLctmascoto, Joux L. Bennett,

Josern G. Got ost. HAROLD Stenert, Arb E. Rat.

ALPoNnsE OCW. Patt J. Mirtak, Neude R Van

MAAREN, and Patt F. Braun,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is set ra fully in

the preceding motion.

STATEMENT OF THE CASE

Because of increased competition and financial chal-

lenges, Xerox was required to decrease the size of its

workforce through voluntary and involuntary reduction

programs. The 18 plaintiffs herein all separated from

Xerox between November 1, 1981, and July 11, 1983,

months or years before contending that they had been

unlawfully terminated in violation of the ADEA.

In early 1982, four former Xerox employees (who are

not parties to the instant lawsuit) filed charges with the

Equal Employment Opportunity Commission (EEOC)

within the requisite 300 days of their separation from

the company. Based on those charges, the four subse-

quently filed a lawsuit entitled Lusardi v. Xerox Corp.

In 1983, the four timely-filed plaintiffs sought certifica-

tion of the suit as a class action. In 1984, the district

court judge conditionally certified the suit as an opt in”

class—a procedure unique to the ADEA that requires

would-be class members to file written consents in order

to become part of the class.* Three years later, however,

District Judge Lechner decertified the class. 118 F.R.D.

351.

The plaintiffs herein never attempted to “opt into” the

Lusardi case within 300 days of their separation from

the company. A. 417.“ Nor did any of them file a charge

with the agency within 300 days of their separation. As

noted by the district court below, the dates of filing

range from 392 days after the alleged discriminatory act

2 The “opt-in” provision is explained fully in Argument IB. below.

* Plaintiff Oliveri did attempt to opt into the Lweardi action

within 300 days of his separation, but he did not fit within the

definition of the Lusardi class.

(plaintiff Bennett) to 2,655 days thereafter (plaintiff

Schaefer). A. 407.“ Nine others filed over 2,000 days

after their leaving the company, and four have never

filed a claim. A. 406-407.

The Third Circuit issued a writ of mandamus direct-

ing Judge Lechner to reexamine his decertification. 855

F.2d 1062. On remand, he reaffirmed that there was no

discriminatory action common to all class members. 122

F. R. D. 463.

The 18 plaintiffs herein then filed individual ADEA

lawsuits. But because of their failure to file claims within

300 days of their discharge, District Judge Larimer

granted Xerox's motion to dismiss. Judge Larimer re-

fused to permit the 18 plaintiffs to “piggyback” onto the

timely-filed claims, noting that “it would be erroneous,

especially on the facts of this case, to ignore Congress’

well-expressed intention to bar suits brought on the basis

of accusations of discriminatory motive which are leveled

years after the adverse employment decision has been

made.” A. 412-413.

The Second Circuit reversed and remanded, greatly ex-

tending the concept of piggybacking beyond that recog-

nized in any other circuit by concluding 1) that the so-

called “single-filing rule“ is available to ADEA plain-

tiffs just as it is to plaintiffs suing under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et se.; 2)

that the single-filing rule may be used, not only by those

joining an existing suit, but also by those initiating in-

dividual suits; and 3) that the administrative claims

filed by the Lusardi plaintiffs were sufficient to secure the

benefit of the single-filing rule for the 18 plaintiffs even

if they were not similarly situated to the Lusardi plain-

tiffs, and even though the court did not have the com-

* References to the Joint Appendix are referred to as “A” fol-

lowed by the relevant page number(s).

T

4

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9234464 &

ei 124123 1

it Ht

class or

as Gish on ann ale Wits ak

plete Lusardi charge before it. Tolliver v. Xerox Corp.,

918 F.2d 1052, 1057-1060 (2d Cir. 1990).

The Second Circuit stressed that its holdi

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5

charging party is not even similarly situated to those

attempting to piggyback on the charge. The Second Cir-

cuit's ruling improperly conflicts with the plain language

of the ADEA, extends and conflicts with court interpreta-

tions in other circuits, and runs afoul of the policy but-

tressing the law.

Before commencing an action in the federal courts,

the plain language of ADEA Section 626(d) requires a

plaintiff to have filed a charge with the EEOC within

300 days of the alleged unlawful practice. Indeed, be-

cause the language in Section 626 is phrased as “shall

be filed,” the 300-day requirement operates, according

to the district court below, as a “statute of limitations,“

A. 411-412, and is a “prerequisite to all actions under

the ADEA.” Foster v. CBS Records, Inc., 109 F. R. D.

168, 169 (S. D. N. V. 1986). These 18 plaintiffs failed to

file charges of discrimination within this requisite period

—indeed some have not filed charges at all—and are thus

,

Some courts have adopted an exception to this strict

filing requirement to further the purposes of ADEA Sec-

tion 216(b). That section provides for an “opt-in” class

action, whereby persons may join a suit by affirmatively

consenting in writing. But these 18 are precluded from

utilizing the so-called “piggybacking” exception because

the Lusardi class was decertified and their opt-in status

was lost.

The Second Circuit’s decision, however, goes far be-

yond construing the piggyback exception developed under

Section 216 0b) to cover these plaintiffs. Indeed, the Ser-

ond Circuit’s decision adopts and extends what it calls

the “single-filing rule” allegedly contained in 29 U.S.C.

$626(d). Under the Second Circuit rule, persons who

have not filed timely charges, and who are not “similarly

situated” to those who have, can still proceed with their

own lawsuits. Unless accepted for review and overturned,

the decision will pull this single-filing rule from its statu-

tory tethers by allowing “an ADEA plaintiff to file his or

her own lawsuit, rather than to join in a previously filed

uit.” For example, here the court permitted the Lusardi

to “suffice to secure the benefit of the ‘single fil-

ing rule’ for the 18 appellants” even though the Second

Circuit never had the Lusardi charge before it, and even

though the 18 plaintiffs here are not similarly situated to

those in the Lusardi case. 918 F.2d at 1057 (emphasis

added). And as the Second Circuit made clear, this re-

sult could occur even if a plaintiff in a lawsuit never at-

tempted to intervene or join in a preexisting suit, or even

if the timely charge was never part of an earlier action.

Such a rule conflicts with the ADEA and improperly

departs from the rules adopted in every other court of

appeals.

In addition to resolving the split in the circuits, this

Court should accept this case for review for a number

of practical and policy reasons. The business community,

which EEAC represents, is concerned that the Second

Circuit’s rule will actually destroy the viability of the

EEOC’s conciliation process, whereby employers, after

being notified of the full extent of alleged discriminatory

practices, are given a chance to rectify voluntarily alleged

violations, thereby avoiding court action. Under the

single-filing rule adopted by the court below, an employer

would have to wait to determine if a single claim could

mushroom into limitléss other claims, and would have to

wait indefinitely to know the potential magnitude of its

liability. *

Thus, the deeision elow has important — ex-

tending beyond the unique circumstances of this particu-

lar case. It effectively requires employers to “treat all

individual charges as potential class actions,” Kloos v.

Carter-Day Co., 799 F.2d 397, 400 (8th Cir. 1986), and

thereby “labor under the threat of a covert class action

throughout the judicial proceedings,” id. at 400-01. If

a

7

left standing, its unintended but inevitable result will be

to remove much of the incentive for employers to use

conciliation. This Court should not sanction such a result.

Rejection of the single filing rule also is necessary to

ensure that employers are given formal notice of the

charges against them, allowing them to conduct an ap-

propriate defense. See Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 395 n.11 (1982). In conducting an

appropriate defense, an employer needs to be apprised

of the scope of a charge in order to preserve records and

secure witnesses. And, as the Fifth Circuit noted in

Edwards v. Kaiser Aluminum and Chemical Sales, 515

F.2d 1195, 1199 (5th Cir. 1975), timely filing promotes

“informal good faith negotiation and voluntary compli-

ance, speedy and peaceful resolution of claims, preserva-

tion of evidence and records, and conserving court re-

sources.” Indeed, another compelling reason for this

Court to accept this case is to limit] the chances for

the filing of suits based on [a plaintiff's] subsequent

motivations or reassessments.” Kloos, 799 F.2d at 400.

This timely filing requirement “is of particular signifi-

cance in the age discrimination area, where every em-

ployed person over the age of forty is a potential plain-

tiff.” Id. (emphasis added).

Accordingly, this Court should accept the case for re-

view with an eye toward rejecting the single-filing rule

adopted by the Second Circuit below.

„„

REASONS FOR GRANTING THE WRIT

I. THE SECOND CIRCUITS RULE—PERMITTING

PLAINTIFFS TO PURSUE INDIVIDUAL CLAIMS

OF DISCRIMINATION UNDER THE SO-CALLED

“SINGLE-FILING* RULE EVEN THOUGH THEY

HAVE FAILED TO FILE TIMELY EEOC CHARGES

OR PROPERLY OPT INTO AN ACTION BROUGHT

BY PLAINTIFFS WHO FILED TIMELY CHARGES

—CONFLICTS WITH THE PLAIN LANGUAGE OF

THE ADEA AND IMPROPERLY DEPARTS FROM

THE RULES ADOPTED BY COURTS IN OTHER

CIRCUITS

EEAC supports Xerox's petition for writ of certiorari

because the Second Circuit has rendered a decision in

conflict with decisions in other courts of appeals, and has

so far departed from the existing “piggybacking” excep-

tion as to read the charge filing requirement out of the

Act, calling for an exercise of this Court’s power of su-

pervision. Supreme Court Rule 10. Indeed, the Second

Circuit stressed that its decision was not limited to the

facts of this case, and stressed that “piggybacking” could

be used by plaintiffs who were not similarly situated to

the individual filing a timely charge, and where they

never attempted to join or intervene in the initial suit.

Unless accepted for review and overturned, the Second

Circuit's ruling will result in unfair consequences unin-

tended by the ADEA’s Congressional drafters, and will

Idad to a severe negative effect on the way parties use

conciliation and the way companies defend allegations

of age discrimination.

= A. Because No Plaintiff Filed A Timely Charge, The

Second Circuit's Single-Filing Rule Conflicts With

The Plain Language Of The ADEA’s Filing Re-

quirements

Section 626(d) of the ADEA requires a plaintiff to

file a timely charge of discrimination with the EEOC

before commencing an action in the federal courts. 29

9

U.S.C. §626(d).° For purposes of this lawsuit, this

“timely charge” period is “within 300 days after the

alleged unlawful practice occurred,” 29 U.S.C. § 626

(d) (2). Since the alleged unlawful practices occurred

when the 18 plaintiffs separated from Xerox—between

November 1, 1981 and July 11, 1983—all 18 had to file

charges by mid-1984 at the latest, in order to preserve

their rights. They did not. A. 406.

The statutory language requiring this timely filing is

unequivocal. Section 626(d) uses the word “shall’’—not

“may” or “can.” It states, “No civil action may be

commenced ... until... after a charge . . has been

filed .... Such a charge shall be filed. . . within 300

days after the alleged unlawful practice occurred . . ..”

Id. (emphasis added). As properly noted by the district

court below, “the 300-day EEOC filing requirement oper-

ates as a statute of limitations, compliance with which is

mandatory and rigorously enforced.” A. 411-412. Foster

v. CBS Records, Inc., 109 F.R.D. 168, 169 (S.D.N.Y.

1986) (the timely filing is a “prerequisite to all actions

under [the]! ADEA”). Accordingly, since none of the

plaintiffs herein complied with the filing requirement,

29 U.S.C. § 626(d) states:

No civil action may be commenced by an individual under

this section until 60 days after a charge alleging unlawful dis-

crimination has been filed with the Equal Employment Oppor-

tunity Commission. Such a charge shall be fled—

(2) in a case to which section 633(b) of this title applies,

wthin 300 days after the alleged unlawful practice occurred, or

within 30 days after receipt by the individual of notice of

termination of proceedings under State law, whichever is

earlier.

Upon receiving such a charge, the Commission shall promptly

notify all persons named in such charge as prospective defend-

ants in the action and shall promptly seek to eliminate any

alleged unlawful practice by informal methods of conciliation,

conference, and persuasion. (Emphasis added).

10

they are time-barred, and any rule to the contrary con-

flicts with the plain language of the statute.

B. No Plaintiffs May Piggyback Herein, And The

Single-Filing Rule Should Not Be Used To Obviate

The ADEA’s Clear Statutory Language

Some courts have found an exception to this timely

filing rule, the so-called “piggyback” exception. These

courts have held that such an exception is necessary to

further the purpose of 29 U.S.C. § 216(b), which allows

persons to join a suit brought by one or more other per-

sons “similarly situated” to themselves.* Under this pro-

vision . . all plaintiffs in an ADEA representative action

must affirmatively opt-in to the suit.” Anderson v. Mont-

gomery Ward & Co., 852 F.2d 1008, 1016 (7th Cir.

1988). As an “opt in” form of class action, it is thus dis-

tinct from the Fed. R. Civ. P. 23 “opt-out” class action

used in Title VII litigation.

All 18 plaintiffs in this case opted into the Lusardi ac-

tion, but the class initially containing these plaintiffs was

decertified and their “opt in” status was lost. Lusardi,

118 F.R.D. 351, reaffirmed, 122 F.R.D. 463. Accordingly,

none can avail himself of the so-called piggyback excep-

tion developed in connection with Section 216(b).*

*29 U.S.C. §626(b) of the ADEA states that the provisions

of this chapter shall be enforced in accordance with the powers,

remedies, and procedures provided in sections 211(b), 216 (except

for subsection (a) thereof), and 217 of [the Fair Labor Standards

Act, 29 U.S.C. § 201 et seg. ].“ Section 216(b) provides as follows:

[A lection to recover [such] liability ... may be maintained .. .

in any . court of competent jurisdiction by any one or more

employees for and in behalf of himself or themselves and other

employees similarly situated. No employees shall be a party

plaintiff to any such action unless he gives his consent in writ-

ing to become such a party and such consent is filed in the

court in which such action is brought. 7

29 U.S.C. § 216 0b) (emphasis added).

* See Kloos v. Carter Day Co., 799 F.2d 397, 399 (Sth Cir. 1986)

(ADEA administrative filings may not serve as the basis for juris-

11

The Second Cireuit's decision herein, however, goes far

beyond construing the so-called piggyback exception to

cover these plaintiffs. Indeed, the decision adopts and

radically extends a “single-filing rule” allegedly contained

in 29 U.S.C. § 626(d). As a result, persons who have

not filed timely charges, and who are not “similarly sit-

uated” SS can still proceed with a law-

suit. According to the decision, because the ADEA's

Ne ⏑ * — on Title VII's pro-

cedure, and because the 1 gg hi agen ts

in Title VII class actions, it is “equally appropriate to

apply [the rule] to ADEA indi 2 ——

to its application to Title VII individual actions.“ 918

F. 2d at 1057.

In fact, however, the decision goes far . y ex

isting Title VII ruling. Unless seeped fo veo wa and

rule”

*

overturned, the decision will pull this “single ng

from its statutory tethers by allowing ADEA

ail tei die Lib dr her ee Coed ae than to join

in

a previously filed suit,” and indeed will permit the

Lusardi charge to “suffice to secure the benefit of the

‘single filing rule’ for the 18 appellants” even though the

district court below never had the Lusardi charge before

it, and even though the 18 plaintiffs here are not simi-

larly situated to those in the Lusardi case. Id. (emphasis

added)

The exception recognized by some courts to further the

purposes of Section 216(b) cannot be so broad that it

swallows the express language of Section 626/d). See-

tion 626(d) states clearly that a charge must be filed

with the EEOC within 300 days of the occurrence of the

unlawful practice. The cases which have allowed an

diction over opt-in class plaintiffs who never filed administrative

charges) ; McCorstin v. United States Steel Corp., 621 F.2d 749, 755

(Sth Cir. 1980); Price v. Maryland Caswalty Co., 561 F.2d 609,

610-11 (5th Cir. 1977) (Section 216(b) “opt-in” procedure must

be used).

12

ADEA plaintiff who has not filed a timely charge to

piggyback onto the timely-filed charges of another, re-

quire that a plaintiff has “opted in” pursuant to Section

216(b).* In addition, just because Title VII permits

“single-filing” does not mean the same procedure is (or

should be) permitted under the ADEA.

The amicus American Association of Retired Persons

(AARP) argued below that the district court “mis-

takenly links” Section 216(b) with Section 626 (d).“

AARP Brief to Second Circuit at 8. AARP claimed that

“(t]he one, and only, touchstone for an adequate charge

is the sufficiency of notice to the EEOC so it-can con-

ciliate the charge.” Id. at 9. But to ignore the plain

language of Section 626(d) and expand the so-called

piggyback exception by adopting the Second Circuit's

“single filing” rule would read Section 626(d) right out

of the statute and make it impossible for any meaningful

conciliation to occur.

The EEOC, as amicus, conceded below that “Title VII's

single filing rule has always been applied in situations

where at least one plaintiff in the action in question had

filed a timely charge.” EEOC Brief to Second Circuit at

12. Yet the EEOC would extend Title VII's single-filing

rule into this ADEA action, even though none of the 18

In 1978, Congress amended Section 626(d) to allow the filing of a

“charge” rather than a notice of intent to sue, a change used by the

Second Circuit below to support its incorporation of Title VII's

single filing rule into the ADEA. 918 F.2d 1052. 1056. But, as

explained fully in Xerox's b to the Second Circuit below, the

“change in language is intended to alter the basic purpose of

the notice requirement“ - notice to the defendant and an opportunity

to conciliate. H.R. Conf. Rep. No. 950, 95th Cong., 2d Sess. 12

(1978). See Xerox Brief at 27. Neither purpose was achieved by

the Second Circuit’s ruling.

Indeed. the Fifth Circuit in McCorstin noted that the “district

court was correct” when it “held that § 626 (d) notice was a pre-

requisite to and complement of the class action mechanism provided

by §[2]16(b).” 621 F.2d at 755.

13

plaintiffs herein filed a charge on time, as expressly re-

quired by ADEA, and further, despite the fact that the

18 plaintiffs cannot satisfy the limited piggyback excep-

tion recognized by some courts in ADEA opt-in actions.

The EEOC’s view that a plaintiff can “maintain an

ADEA action so long as a timely charge has been filed,”

id. at 7, seemingly would permit piggyback plaintiffs to

maintain ADEA actions five, ten, even fifteen or twenty

years after “a” timely charge was filed, even if the

charge was not filed in connection with these ADEA ac-

tions. Such a view does violence to the plain language of

the statute and to the EEOC’s function of conciliating

charges. The Second Circuit’s adoption of the EEOC's

interpretation of single-filing rule should not stand.

C. The Second Circuit’s Rule Improperly Departs

From, And Indeed Conflicts With, The Rules

Adopted In Other Circuits

Not only does the Second Circuit’s decision read Section

626(d) out of the ADEA, but it departs from, and con-

flicts with all previous decisions in all other courts that

have examined the concept of piggybacking.

For example, the Tenth Circuit in Mistretta v. Sandia

Corp., 639 F.2d 588 (10th Cir. 1980), held specifically

that “the ADEA authorizes grievants who have complied

with § 626(d) to bring representative actions pursuant to

§ 216(b) on behalf of ‘similarly situated’ employees.

Id. at 593 n.3. (emphasis added). Clearly, however, this

case involves no plaintiffs who complied with § 626(d) by

filing a charge.“ Moreover, the Lusardi class was decerti-

fied expressly because none of the former opt-in claim-

% Mistretta apparently would permit “similarly situated” plain-

tiffs to join an action so long as one plaintiff has “complied with the

notice requirements of 29 U.S.C. 626 (d).“ 639 F.2d at 593 n.3.

Clearly, this is not such a case. More importantly, EEAC requests

this Court to adopt the rule that each opt-in plaintiff must file a

timely charge.

14

ants, including the plaintiffs herein, are similarly situated

to the Lusardi plaintiffs.

And in Bean v. Crocker National Bank, 600 F.2d 754,

759 (9th Cir. 1979), the Ninth Circuit ruled that would-

be plaintiffs who have not filed charges may “join in an

action as unnamed parties so long as a named plaintiff

has complied with the notice requirements of 29 U.S.C.

§ 626(d).” (Emphasis added). See also Kloos, 799 F.2d

397, 400 (8th Cir. 1986) (“we follow Mistretta and

Bean and hold that it is sufficient for one or more plain-

tiffs to the action to have properly filed a charge”). Here,

in direct conflict with the Tenth, Ninth and Eighth Cir-

cuits, the Second Circuit has permitted the plaintiffs to

use the single filing rule even though none have filed

the requisite Section 626(d) charges.

Indeed, all other circuits permitting a plaintiff to piggy-

back have done so only where there is some factual nexus

between the plaintiffs attempting to piggyback and the

person who has filed the timely charge. For example, in

Lockhart v. Westinghouse Credit Corp., 879 F.2d 43 (3d

Cir. 1989), the Third Circuit noted that those attempting

to piggyback worked in the same division with those who

filed timely charges, and all had the same manager, were

separated in conjunction with the same discriminatory

scheme, and sought the same relief. A suit must be

“limited to individuals similarly situated” to the filing

party. Price v. Maryland Casualty Co., 62 F.R.D. 614,

615 (S.D. Miss. 1972), aff'd, 561 F.2d 609 (5th Cir.

1977). See also Foster v. Gueory, 655 F.2d 1319, 1322

(D.C. Cir. 1981).

As explained fully in Xerox's Petition for a Writ of

Certiorari at pp. 40-52, the Second Circuit, in direct

conflict with other courts, has effectively eliminated this

nexus requirement, and improperly concentrates the

breadth of the charge. Under its single filing rule, “the

broader and more generic the language in the contents

of the charge, the greater the number of persons who can

piggyback on it.” Id. at 42.

i

15

Accordingly, this Court should grant Xerox's petition

for a writ of certiorari, not only to resolve the

the circuits, but to put meaning back into the ADEA’s

charge filing provision.

we now show, however, strong policy reasons instead

The ADEA’s charge filing requirement is designed to

provide “an opportunity to eliminate alleged unlawful

through informal methods of conciliation.”

No. 950, 95th Cong., Ist Sess. 12 (1978) ;

2d at 400; Poster, 109 F.R.D. at 170. Then,

EOC presents the full extent of the allega-

employer is given “a chance to rectify volun-

alleged violation, thereby avoiding a court ac-

oster, 109 F. R. D. at 170. EEAC’s member com-

conciliation to resolve disputes, and the ADE A“

filing requirements properly facilitate that resolu-

. Rogers v. Exxon Research & Engineering Co.

834, 841 and n. 11 (3d Cir. 1977), cert. denied,

022 (1978) ‘conciliation is the ADEA's most

5

es

2854s

ati tetris

/ 16

method of enforcement”). In its decision below,

yer, the Second Circuit misconstrued the notion of

contiliation, ruling that the ADEA’s statutory purpose

wif, be met with the single-filing rule. The implication,

u , is that employers will more likely to

liate where, as here, a broadly charge has

deen filed.

If allowed to stand, the Second Circuit’s ruling will

actually destroy the viability of EEOC’s conciliation proc-

ess. An employer will never know whether a single

claim could later mushroom into limitless other claims or

whether the plaintiffs piggybacking on the charges will be

similarly situated to the charging party. Therefore, an

employer would not know with whom t& conciliate. In-

deed, an employer would have to wait indefinitely just

to know the ¢-eutial magnitude of its liability. Also, the,

OC wou . no way of knowing what activities were

encompassed by the conciliation. This Court shovid not

sanction a rule that requires employers to “treat ali in-

dividual charges as potential class éactions,” Kloos, 799

F.2d at 400, and thereby “labor under the threat of a

covert class action throughout the judicial proceedings,”

id. at 400-01. The unintended result would be that em-

ployers would seldom use conciliation.

Accordingly, as a means of encouraging the full use

of conciliation, this Court should accept the case for re-

vier with an eye towards rejecting the single-filing rule.

> B. Rejection Of The Single-Filing Rule Is Necessary

*

To Ensure l Formal Notice To The Employer Of The

Charges Against It, Permitting It To Preserve Rec-

7 ords, Secure Witnesses, And Conduct An Appropri-

ate Defense

€ The Second Circuit's decision below also erroneously

implies that.only the EEOC, not the employer, needs to

be alerted’ to ~~ of discrimination. It states:

}

*

‘

22

— „

implernen its redaction in force during the years

1984 1983 by discriminating on the basis

of those aged 40 to 70. The Lusardi

age

plaintiffs did not purport to be complaining of iso-

lated inatances of age discrimination. Rather, they

alerted the EEOC to a claim of age discrimination

throughout the company’s domestic operations.

well as the EEOC, rf. ‘2 have formal notice of the

charges against ‘hem in der to conduct an apyro-

priate defense. 7 8 Ww Ire 456

U.S. 385, 395 n.

In conducting an gus defense, an employer

needs to te apprised of the scope of a charge ir order

to preserve records and secure witnesses. As the Fifth

Cireu't noted in Edwards v. Kaiser Aluminum ad Chem-

——

n The defense of class claims differs] from individual actions

in a number of respecta—most significantly in factual complexity

and their potential for far-reaching monetary and equitable relief.

." Anderson ©. Montgomery Ward & Co, Inc., 40 FP. p. 43,428, ©

43,430, rev'd on vihe~ grounds and withdrawn, 631 F. Supp. 1546 ;

(N. p. In. 1986), af"d, 852 F.2d 1008 (7th Cir. 1988). It was this!

fundamental distirction between the two types of claims that led

the district court in Anderson to reason that “it is not a matter of

indifference to an employer whether an employee files suit in his

owr’ behalf alleging a pattern of discrimination, or a class action

contdining similar allegations.” Id. Since “it is reasonable for

—— —— 2 anaes tie dais elite taxa

leu ina She conusss'or of pdividual actions into class actions long

~~~. Satter the litigation has begun, as plaintiffs would have the Court do

here, would require employers to treat all discrimination suits as

class action, a result that would be both wasteful and unfair.” /d.

18

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f

a potential plaintiff. Virtually everyone

force at some point fails to get some-

might have wanted. Whether the per-

or merely failed to be chosen for a

promotion, he or she is a potential plain-

40. By adopting the requirement of a

inistrative charge, Congress unquestion-

to limit the potential for the filing of

tardy reassessments.

(emphasis: added). Accordingly, the

filings due to “subsequent reassess-

“particular importance” this limitation

DEA claims, compels the adoption of a

e, and the rejection of the “single-filing

115

et

25

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45

145

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5 >

CONCLUSION

foregoing reasons, EEAC respectfully urges

to grant Xerox’s petition for a writ of

Respectfully submitted,

na

Ropert E. WILLIAMS

DoucLas S. MCDOWELL

GAREN E. Dopce *

& McGurness & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

March 15, 1991 * Counsel of Record