Defendant moves to dismiss all or part of the complaint for several reasons. First, it alleges that AARP lacks standing to sue. Second, defendant asserts that the nine plaintiffs who did not retire under the ERO lack standing. Defendant also asserts that all eleven plaintiffs, who were under the age of 65 at the time of the ERO, lack standing to challenge the age cap. Finally, defendant claims that no plaintiffs who have standing filed timely charges of discrimination.
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,
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.
Defendant asserts that plaintiffs can not recover any damages because the ERO was a one-time program and plaintiffs did not enter the ERO during the window period. In support of its position, defendant relies on several cases where employees or past employees were not permitted to challenge a retirement program. E.g., Walker v. Mountain States Tel. & Tel. Co., 645 F. Supp. 93, 95-96 (E. Colo. 1986) (collecting cases). This reliance is misplaced. In these cases, the employees could not challenge the program because they had retired before its effective date or were otherwise ineligible. Since the employees were never eligible to participate in the program, they could not contest it. Id. Here, plaintiffs were eligible for the ERO but did not terminate their employment during the window period.
Since plaintiffs were eligible for the ERO they are entitled to challenge its alleged discriminatory aspect even though they did not choose to retire pursuant to its terms. See also Henn v. National Geographic Society, 819 F.2d 824, 829 (7th Cir. 1987) ("The decision to reduce one's injury from the employer's violation of the ADEA would not prevent a suit to recover the remainder of the loss.")
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.
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, I can not determine whether employees affected by the years of service cap, all of whom are in the age group protected by the ADEA, are "similarly situated" to employees affected by the age cap.
2. Failure to File a Timely EEOC Charge.
Section 626(d) requires that an individual must file a charge with the Equal Employment Opportunity Commission before he can file a civil action under the ADEA. This charge must be filed within 180 days of the alleged unlawful practice in a non-deferral state, or within 300 days after the alleged unlawful practice in a deferral state.
29 U.S.C. § 626(d).
As the parties have submitted various affidavits and documents on the question whether plaintiffs filed a timely EEOC charge, I will treat the defendant's motion as one for summary judgment. The record, however, is incomplete and material questions of fact exist as to the date the ERO was actually announced to plaintiffs and the date plaintiffs charges were filed with the EEOC.
Moreover, having assumed that the plaintiffs who did not retire under the ERO lacked standing, defendant focused its argument on the two plaintiffs who retired under the ERO. Since I have concluded that all eleven plaintiffs have standing, defendant must address the timeliness of the administrative charges brought by all eleven plaintiffs.
E.g., Kloos v. Carter Day Co., 799 F.2d 397 (8th Cir. 1986) (opt-in plaintiffs need not file administrative claims if named plaintiffs have filed class wide charges); Lusardi v. Xerox Corp., 99 F.R.D. 89 (D.N.J. 1983), appeal dismissed, 747 F.2d 174 (3d Cir. 1984). Defendant's motion will be denied on the basis of the present record.
3. Standing of AARP
The parties have spent a considerable amount of time arguing about whether AARP has standing to bring this action. AARP now properly concedes that it does not have standing in its own right. It, therefore, relies on the doctrine of associational standing.
The Supreme Court has held that "even in the absence of injury to itself, an association may have standing solely as the representative of its members." Warth v. Seldin, 422 U.S. 490, 511, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). An association's standing on behalf of its members depends on the type of relief sought. As the Court in Warth held, "if in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind." Id. at 515.
To satisfy Article III standing requirements, the Supreme Court has established the following three-part test:
An association has standing to bring suit on behalf of its members when: