The opinion of the court was delivered by: COHILL
Maurice B. Cohill, Jr., Chief Judge
Presently before us is a motion by defendant, USX Corporation, to dismiss plaintiff Robert G. Theys from the above-captioned action. The analysis of the issue presented here is almost like participating in the ancient and revered theological exercise of determining how many angels can dance on the head of a pin (and whether or not they can hold a jamboree).
Theys and his co-plaintiff Richard Nowicki, Sr. are former employees of defendant. Both plaintiffs allege that they were discharged by defendant in violation of (1) certain provisions of the Employmee Retirement Security Act ("ERISA"); and (2) the Age Discrimination in Employment Act ("ADEA").
Prior to instituting this lawsuit, Mr. Nowicki satisfied the procedural requirements of the ADEA by filing a timely charge with the Equal Employment Opportunity Commission ("EEOC"). Mr. Nowicki's EEOC charge specifically named Mr. Theys as a person similarly situated:
U.S. Steel maintains a practice or policy of laying off employees or failing to recall them in such a way as to avoid paying them the pension benefits due them because of their age. Part of the reason the Respondent selected me for layoff was because I was 26 days short of qualifying for the "Rule of 65" pension. Bob Theys, Class 13, Senior Research Technician, was also 26 days short of 20 years of service. He was also laid off. Terry Smith, Class 11, Research Technician, was 33 days short of 20 years of service with the Company. He was also laid off. The group of employees mentioned here are all over 40 years of age.
See Plaintiff's Amended Complaint, Exhibit 1, para. IV.
Mr. Theys did not join in the EEOC charge, nor did he file his own charge before the EEOC. Defendant argues that Mr. Theys cannot proceed as a co-plaintiff on the ADEA claim, since he did not satisfy the procedural requirements of the ADEA by filing an EEOC charge. See 29 U.S.C. § 626(d). Mr. Theys responds that there is precedent for permitting persons in his position to "opt-in" to class action lawsuits brought by others who did satisfy the procedural requirements of the ADEA. Mr. Theys is, in part, correct.
Section 7(b) of the ADEA [ 29 U.S.C. § 626(b)] incorporates the representative enforcement provision of the Fair Labor Standards Act ("FLSA"), Section 16(b) [ 29 U.S.C. section 216(b)]; the representative enforcement provision applicable to FLSA/ADEA provides:
An action . . . may be maintained against any employer . . . 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.
Although representative enforcement actions under FLSA/ADEA are often described and analyzed in the language of Rule 23 class actions, they are not traditional class actions. Representative enforcement actions have very different prerequisites and consequences:
There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b). In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has "opted out" of the suit. Under § 16(b) of the FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively "opted into" the class; that is, given his written, filed consent. It is clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits.
La Chapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975) (citations omitted); see also 3B J. Moore & J. Kennedy, Moore's Federal Practice para. 23.02[2.-10] (1987). Rule 23 directs the court to issue "the best notice practicable" to all members of the class; any resulting judgment disposes of potential claims by all class members unless individuals "opt-out" of the class. Representative enforcement actions under the ADEA/FLSA provisions do not require notice to "other employees similarly situated," and do not automatically dispose of potential claims by those similarly situated employees. 29 U.S.C. § 216(b); see Lusardi v. Xerox Corp., 99 F.R.D. 89, 92 (D.N.J. 1983), appeal dismissed, 747 F.2d 174 (3d Cir. 1984) (notice to "similarly situated" employees is permissible, though not mandatory). Similarly situated employees must "opt-in," by filing written consent with the court. See, e.g., Bean v. Crocker National Bank, 600 F.2d 754, 760 (9th Cir. 1979).
A number of courts have addressed the issue of whether "similarly situated" employees must individually satisfy the EEOC filing requirements as a prerequisite to opting-in to a representative enforcement action. The courts have generally resolved the issue by permitting representative enforcement actions to proceed, so long as the "named" representatives (1) satisfied the EEOC filing requirements; and (2) gave sufficient notice of a potential class claim in their EEOC charge. See Mistretta v. Sandia Corp., 639 F.2d 588, 594 (10th Cir. 1980); Bean v. Crocker National Bank, 600 F.2d 754 (9th Cir. 1979); see also Kloos v. Carter-Day Co., 799 F.2d 397, 402 (8th Cir. 1986) (affirming dismissal of opt-in plaintiffs because administrative charges filed by the class representatives failed to give fair notice of class claims); Naton v. Bank of California, 649 F.2d 691 (9th Cir. 1981); McCorstin v. United States Steel Corp., 621 F.2d 749, 755-56 (5th Cir. 1980) (affirming denial of class certification on a factual finding by the lower court that the EEOC charge did not purport to include similarly situated employees; the Fifth Circuit Court specifically declined to indicate whether the class could have been "certified" if the complaint had given notice of others similarly situated); Anderson v. Montgomery Ward & Co., 650 F. Supp. 1476 (N.D. Ill. 1987) (certifying to Seventh Circuit Court of Appeals question of whether expressly representative EEOC charge is a prerequisite to representative enforcement lawsuit under the ADEA); Foster v. CBS Records, 109 F.R.D. 168 (S.D.N.Y. 1986).
The Third Circuit Court of Appeals has not addressed this issue. However, we are persuaded that the rationale of the Ninth ...