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AARP v. E.I. DU PONT DE NEMOURS & CO.

December 3, 1987

American Association of Retired Persons, et al, Plaintiffs,
v.
E.I. Du Pont de Nemours and Company, Inc., Defendant



The opinion of the court was delivered by: DITTER

 DITTER, J.

 Plaintiffs, American Association of Retired Persons ("AARP") and eleven former employees of E.I. Du Pont de Nemours and Co. ("DuPont"), challenge a retirement program offered by DuPont on the ground that it violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Defendant now moves to dismiss the complaint for procedural defects.

 In 1985, DuPont instituted a one-time Early Retirement Opportunity program ("ERO") in an effort to reduce its work force. Under the ERO most DuPont employees who retired or terminated their employment between March 1, 1985, and April 30, 1985, received a five-year credit towards both their age and years of service for purposes of calculating pension benefits. The ERO, however, placed a cap on recomputed age and years of service at 70 and 40 years respectively. Plaintiff employees all had more than 35 years of experience and therefore would not have received the full five-year credit on years of service. Only two plaintiffs retired under the ERO. *fn1" Plaintiffs allege that the ERO, by placing caps on age and years of service, violated the ADEA. *fn2" After filing charges with the EEOC or the appropriate state agency, plaintiffs and AARP brought this suit. In addition, several other DuPont employees who were eligible for the ERO joined this action. *fn3"

 Before considering defendant's arguments, it is important to emphasize the current posture of the case. Defendant's motion to dismiss is based on issues totally independent of the merits of plaintiffs' ADEA claim. While defendant has provided the court with the terms of the ERO, the program "does not provide, and has never been interpreted as providing, a discrete benefit, monetary or otherwise, which can exist (or, for that matter, even be calculated) apart from the pension benefit to which an individual employee is entitled under other provisions of the [DuPont Pension and Retirement Plan]." Defendant's Motion to Dismiss. Because the parties have not provided the court with Dupont's pension plan, any attempt to determine the alleged discriminatory effect of the ERO would be mere conjecture. Thus, this opinion should not be considered to express any view on the merits of plaintiffs' claims.

 1. Standing of Individual Plaintiffs.

 AARP does not argue that it has standing on its own behalf. Plaintiffs' Surreply to Defendant's Motion to Dismiss (Document 35). Rather, it asserts associational standing on behalf of its members. Since AARP's standing is in part dependent on the standing of its members, *fn4" E.E.O.C. v. Nevada Resort Ass'n, 792 F.2d 882 (9th Cir. 1986), I will first examine the standing of the individual plaintiffs.

 For purposes of Article III of the Constitution, a person has standing if he has a personal stake in the litigation which includes a showing that he has suffered a "distinct and palpable" injury "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976); Doherty v. Rutgers School of Law, 651 F.2d 893 (3d Cir. 1981). Defendant claims, by way of uncontested affidavit, that plaintiffs Becker, Byrd, Brehmer, Henderson, Keith, Lamberth, Lancaster, Morris, and Woodall did not retire or terminate their employment during the ERO window period. Thus, it argues that they are not entitled to redress even if the ERO violates the ADEA. This argument is without merit.

 The ADEA includes broad remedial language which vests courts with the power "to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter. . . ." 29 U.S.C. § 626(b). Pursuant to this broad language, the Third Circuit has permitted recovery of not only back pay and reinstatement, but also recovery of front pay, Maxfield v. Sinclair Int'l, 766 F.2d 788 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986), as well as lost pension benefits. Blum v. Witco Chemical Corp., 829 F.2d 367 (3d Cir. 1987). In these cases, the Third Circuit reasoned that Congress granted courts broad power so that victims of age discrimination could "be made whole by restoring them to the position they would have been in had the discrimination never occurred." Maxfield, 766 F.2d at 796. If the ERO is found to violate the ADEA, the policy of making victims of age discrimination whole, coupled with the broad remedial powers of the ADEA, would entitle plaintiffs to compensation in the form of increased pension benefits.

 Plaintiffs' position is implicitly supported by Cipriano v. Board of Education, 785 F.2d 51 (2d Cir. 1986). There, defendant instituted a three-year bonus retirement program for employees between the ages of 55 and 60 who retired between July and February of any of the three years. Plaintiffs, all over the age of 60, retired on June 30, outside the program's window periods. Id. at 52. Nowhere in its opinion did the Second Circuit find that the failure to retire during the window period barred plaintiff from challenging the plan. Similarly, plaintiffs are not barred from contesting the ERO simply because they did not retire during the window period of the program.

 Defendant also contends that plaintiffs, all of whom were under the age of 65 in 1985, can not challenge the age limitation aspect of the ERO or represent opt-in plaintiffs who were over 65. The ADEA only requires that the named plaintiffs be "similarly situated" with employees who opt-in to the case. 29 U.S.C. § 216(b). Thus, the claims of the named plaintiffs need not be identical to the claims of the opt-in plaintiffs. *fn6" E.g., Burt v. Manville Sales Corp., 116 F.R.D. 276, 277 (D. Colo. 1987); Riojas v. Seal Produce, Inc., 82 F.R.D. 613, 616 (S.D. Tex. 1979). As noted earlier, the terms of the ERO are dependent on DuPont's pension plan. Because the terms of the pension plan are not part of the record, ...


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