Plaintiffs' Failure to Establish a Common Plan or Policy to Discriminate Against Older Workers Doomed Attempt to Get Court Facilitated Assistance With Notice to Opt-In Members of Collective Action

Rusis, et al v. International Business Machines Corp. - United States District Court, Southern District of New York

Facts:  The four Plaintiffs in this case (Edvin Rusis, Henry Gerrits, Phil McGonegal, and David Ho Eng) all worked for International Business Machines Corp. ("IBM") in various jobs until their separation from the company in March and June of 2018.  Plaintiffs proceeded to file suit against IBM, alleging violations of the Age Discrimination in Employment Act ("ADEA").  According to the complaint, the Plaintiffs alleged that since the early 2010's, IBM had laid off or otherwise forced its older workers out of the company in a systematic effort to replace them with new, younger workers.  IBM was alleged to have used several methods to reduce its group of older workers and replace them with younger workers, including:  terminating older employees for pretextual reasons; constructively discharging them; or imposing unreasonable conditions on their continued employment, while shielding younger employees from similar conditions.

The Plaintiffs, having filed a putative class action against IBM, sought court facilitated notice of the action to potential opt-in members of the ADEA collective.  Plaintiff's proposed notice would be given to "all individuals who worked for IBM in the United States over forth (40) years of age whose employment with IBM ended (either because of layoff, discharge, or voluntary -- and thus may have been constructively discharged) any time since July 14, 2017.  This proposed nationwide collective action would encompass almost 13,000 individuals

Holding:  The ADEA provides that a court may authorize notice and order defendants to provide the names and contact information for potential class members to the plaintiffs so the potential class members can be notified of the action and given the opportunity to "opt in."  As the United States Supreme Court has previously held, "[C]ourts have discretion, in appropriate [ADEA] cases, to...facilitat[e] notice to potential plaintiffs."

In determining whether to require a defendant to provide names and contact information of all potential opt-in plaintiffs to the collective action, courts in the Second Circuit use a two step process:  At the notice stage, plaintiffs must establish that other employees "may be 'similarly situated'" to them.  As this is a rather low burden, plaintiffs need only "make a 'modest factual showing' that they and potential opt-in plaintiffs 'together were victims of a common policy or plan that violated the law.'"  As for the second stage, when the court has a more developed record, the named plaintiffs must prove that the plaintiffs who have opted in are, in fact, "similarly situated" to the named plaintiffs and were all subject to the same illegal employment practice such that their cases can all be tried together.

The Court noted that while the group of former employees that Plaintiffs sought to provide notice might contain one (or even several) groups of former employees who are similarly situated to each other, the Plaintiffs had failed to meet their burden of tying all former employees who are in their proposed collective to a common policy or plan.  In this case, the Plaintiffs had submitted affidavits from fifteen former IBM employees.  The affidavits described a particular incident of age discrimination at a different IBM location, division, seniority level, and job function.  However, the affidavits appeared to identify different decision makers at IBM that were responsible for the various alleged acts of discrimination.  In doing so, the Court recognized that Plaintiffs' affidavits failed to make even a minimal showing that a common plan or policy existed, defeating the Plaintiffs' request at this stage of litigation.

Judgment:  The District Court denied Plaintiffs' motion to obtain court facilitated notice of potential opt-in members of an ADEA collective action against IBM on the grounds that Plaintiffs had failed to establish a common plan or policy existed among IBM to discriminate against older employees.

The Takeaway:  At the outset, I will note that the District Court was not saying that Plaintiffs had no valid ADEA claim against IBM.  Rather, the Court reached the conclusion that because Plaintiffs' affidavits failed to establish a common plan or policy at IBM to discriminate against older employees, court facilitated notice of the ADEA claim to potential opt-in members was not appropriate.  Perhaps one of the other sticking points here for the Court was the fact that the putative collective action might include nearly 13,000 workers.  As Plaintiffs could not cite a case which justified using court facilitated notice to potential opt-in members to an ADEA collective action of this size, that put Plaintiffs in a less than tenable situation to make its argument at this stage of litigation.

Majority Opinion Judge:  Judge Caproni

Date:  March 10, 2020

Opinion:  https://www.courtlistener.com/recap/gov.uscourts.nysd.500997/gov.uscourts.nysd.500997.97.0.pdf