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Donofrio v. IKEA U.S. Retail, LLC

United States District Court, E.D. Pennsylvania

December 19, 2019

FRANK DONOFRIO, on behalf of himself individually and on behalf of those similarly situated, Plaintiff,
v.
IKEA U.S. RETAIL, LLC, Defendant.

          MEMORANDUM

          ANITA B. BRODY, J.

         Plaintiff Frank Donofrio (“Donofrio”) is a 56-year-old employee of Defendant IKEA U.S. Retail, LLC (“IKEA”). Donofrio brings this collective action suit alleging that IKEA violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), by discriminating against him and other similarly situated employees on the basis of their age.[1] I conditionally certified the following collective action class: “Any current hourly retail non-management employee of IKEA who, since January 20, 2016, was age 40 or over and rejected for promotion to a management level position.” See ECF No. 71.

         IKEA seeks clarification of the class period. It wishes to modify the class definition to include an end date of November 15, 2016-the date Donofrio filed his discrimination charge with the EEOC-as the last day on which class members could have been rejected for promotion. See Mot. for Clarification 1-2, ECF No. 72. IKEA does not contest the class start date of January 20, 2016, which both parties agree is proper.

         I will grant in part and deny in part IKEA's Motion for Clarification. For the reasons explained below, the appropriate last day on which class members could have been rejected for promotion is the day the EEOC issued Donofrio a right-to-sue letter, November 29, 2017. I will modify the class definition to read: “Any current hourly retail non-management employee of IKEA who, between January 20, 2016 and November 29, 2017, was age 40 or over and was rejected for promotion to a management level position.”

         I. PROCEDURAL BACKGROUND

         On November 15, 2016, Donofrio filed a Charge of Discrimination with the EEOC. Compl. Ex. A. In the charge, he alleged that he was repeatedly denied promotions in favor of younger employees, that other employees were denied promotions in favor of younger employees, that IKEA had “a bias against older employees, ” id. ¶ 2(e), and that “other employees perceive [IKEA] to discriminate on the basis of age, ” id. ¶ 2(b). He specified that he brought the charge “as a class and pattern and practice Charge” on behalf of himself and other employees “who are age forty (40) and over, and who have been discriminated against based on age in connection with hiring, promotion, training, or termination decisions . . . .” On November 29, 2017, the EEOC closed its file on his charge and issued him a Notice of Right to Sue. Compl. Ex. B. On February 12, 2018, Donofrio timely filed a complaint with this court.

         In a May 15, 2019 order, I granted conditional certification on Donofrio's proposed collective action class. The class definition in the order did not include an end date, meaning the last date on which class members could have been rejected for promotion. IKEA moved for clarification as to the class period. It argued that the appropriate end date for the class was the date Donofrio filed his discrimination charge with the EEOC (November 15, 2016). See Mot. for Clarification 1-2, ECF No. 72. Donofrio responded that the proper end date was the date I granted conditional certification (May 15, 2019). See Opp. to Mot. for Clarification 5, ECF No. 74. I denied IKEA's Motion for Clarification and allowed the issue to be raised at a later stage in the lawsuit.

         At the status conference on December 5, 2019, IKEA requested reconsideration of the class period before the parties send opt-in notification to class members. As opt-in notification will soon be mailed to class members, I now reconsider and will vacate my earlier order denying the Motion for Clarification.

         II. DISCUSSION

         IKEA contends that the appropriate end date for the collective action class is the date Donofrio filed his charge with the EEOC, “because the temporal scope of a collective action is defined by the Plaintiff's charge” and an unlimited class would give “collective action plaintiffs more rights than Plaintiff Donofrio himself.” Mot. for Clarification Reply Br. 1, ECF No. 75. Donofrio asserts that where an EEOC charge alleges ongoing class-based discrimination, the temporal scope of the action extends to the date of conditional certification because the charge has put the employer on notice of continuing discrimination. The temporal scope of the collective action is bounded by the representative plaintiff's charge, but that conclusion compels an end date of November 29, 2017, when the EEOC closed its file on Donofrio's charge and issued him a right-to-sue letter.

         Before filing an ADEA lawsuit, plaintiffs ordinarily must exhaust their administrative remedies by filing a timely charge with the EEOC. See 29 U.S.C. § 626(d)(1). In Pennsylvania, they must file the EEOC charge within 300 days of the alleged unlawful practice. See Id. § 626(d)(1)(B); Ruehl v. Viacom, Inc., 500 F.3d 375, 382-83 (3d Cir. 2007). “[T]he purpose of the EEOC filing . . . is to provide notice to the employer and an opportunity for conciliation.” Lusardi v. Lechner, 855 F.2d 1062, 1077 (3d Cir. 1988).

         The requirement that plaintiffs must file an EEOC charge has two exceptions relevant to this case: the “piggybacking rule” and the “new-acts exception.” Under the piggybacking rule, class members share the temporal scope of Donofrio's charge even if they did not file their own EEOC charges. Under the new-acts exception, Donofrio's charge excuses him from filing further EEOC charges based on related “new acts which occurred during the pendency of proceedings before the Commission.” Robinson v. Dalton, 107 F.3d 1018, 1025-26 (3d Cir. 1997). Class members are therefore also excused from exhausting their remedies for related acts that occurred during the EEOC proceedings. The class is defined by acts that are within the scope of Donofrio's charge: allegedly age-related failures to promote. Applying the new-acts exception together with the piggybacking rule makes sense because the two doctrines share the same rationale. They carve out exceptions to the administrative exhaustion requirement where new EEOC filings would not serve the requirement's notice-and-conciliation purposes.

         A. Piggybacking Rule

         Opt-in plaintiffs in ADEA collective actions are excused from the administrative exhaustion requirement under the piggybacking rule (or “single-filing rule”). The rule allows opt-in plaintiffs who have not filed their own EEOC charges to “piggyback” onto a timely charge “if the original EEOC charge filed by the plaintiff who subsequently filed a [collective] action had alleged class based discrimination in the EEOC charge.” Commc'ns Workers of Am. v. New Jersey Dep't of Pers., 282 F.3d 213, 217 (3d Cir. 2002). The Third Circuit has adopted the EEOC's position that “a representative complaint meets the purpose of the EEOC filing, which is to provide notice to the employer and an opportunity for conciliation.” Lusardi, 855 F.2d at 1077. “The principle behind the piggybacking rule is to give effect to the remedial purposes of the ADEA and to not ...


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