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January 27, 1982

Kay BURNS, James J. Connors, Joseph L. Farrar, Judah J. Harris, Frances B. Klepsch and Jock Thornton, individually and on behalf of all other persons similarly situated, Plaintiffs,

The opinion of the court was delivered by: LASKER

This case arises out of a large scale staff reduction undertaken by defendant Equitable Life Assurance Society of the United States ("Equitable") in 1978 and 1979, in which over five hundred employees were terminated, approximately 360 of whom were over forty years old. The complaint in this action was filed in September, 1979, by Kay Burns and the other named plaintiffs, charging violations of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). Over one hundred of Equitable's former employees have opted to join the action, *fn1" as allowed by 29 U.S.C. § 216(b). *fn2"

Nearly two years later, on September 1, 1981, the Equal Employment Opportunity Commission ("EEOC") filed an action, No. 81 Civ. 5447, against Equitable, complaining of ADEA violations. *fn3" As Exhibit A to its complaint, the EEOC attached a list of 434 present and former Equitable employees for whom it seeks liquidated damages, pursuant to 29 U.S.C. § 216(b). *fn4" Included in that list were a number of the Burns plaintiffs. On September 3rd, EEOC counsel entered a stipulation removing from its Exhibit A all of the Burns plaintiffs.

Equitable now moves to dismiss the instant action on the grounds that dismissal is required by section 626(c)(1) of the ADEA, which provides that:

"Any person aggrieved may bring a civil action ... for such ... relief as will effectuate the purposes of this act: Provided, That the right of such person to bring such action shall terminate upon the commencement of an action by (the EEOC) to enforce the right of such employee under this act."

 Equitable interprets section 626(c)(1) as providing that an agency suit cuts off all private rights of action, including those of plaintiffs who have already filed suit. Plaintiffs argue that the section allows an agency suit to cut off only a private plaintiff's right to bring an action subsequent to the filing of the EEOC action, not his right to continue to prosecute an action already commenced. *fn5"

 The question presented is a narrow one. There is no dispute that once the agency files an action on behalf of certain plaintiffs, the statute precludes those plaintiffs from filing a private action with respect to the same ADEA violation. The issue here is whether the statute requires the dismissal of a private action which is already pending at the time the agency files its action. Thus, the issue turns on the meaning of the word "bring" in section 626(c)(1)"s provision that "the right of such person to bring such action shall terminate upon the commencement of an action by (the EEOC)." Does it mean "bring and maintain," as Equitable contends, or "commence," as plaintiffs contend?

 Equitable argues that if Congress had meant "bring" to mean commence, it would have used that term, as demonstrated by the fact that the word "commencement" was used in the very same sentence. In addition, Equitable cites language in the legislative history and in cases construing other sections of the ADEA which indicate that Congress intended that, under the ADEA, "private lawsuits are secondary to administrative remedies and suits brought by the (EEOC)." Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 841 (3d Cir. 1977). See also Reich v. Dow Badische Co., 575 F.2d 363, 368 (2d Cir.), cert. denied, 439 U.S. 1006, 99 S. Ct. 621, 58 L. Ed. 2d 683 (1978); 113 Cong.Rec. 34748. Equitable argues that if 626(c)(1) is interpreted to allow the plaintiffs to be represented by both the EEOC attorneys and private counsel, a situation could arise in which private counsel could frustrate EEOC's attempts to settle the case or to conduct it as the agency sees fit, thus thwarting Congressional intent to make private lawsuits "secondary to administrative remedies and suits brought by the (EEOC)." Id. Equitable also contends that its construction of the statute would avoid a multiplicity of litigation.

 Plaintiffs naturally respond that the phrase "bring (an) action," is understood in ordinary usage to mean to begin or file an action, and that if Congress had meant EEOC actions to supersede a private action, it could easily have said precisely that. Moreover, plaintiffs argue that the legislative history of the ADEA establishes that it was modeled upon the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), and that, under FLSA's cut-off provision, which is nearly identical to the ADEA cut-off provision in dispute here, *fn6" pending private actions are not terminated by an agency action. Plaintiffs contend that if Equitable's interpretation were accepted, private attorneys would be highly reluctant to undertake ADEA cases, fearing that they could be dismissed on the eve of victory by the EEOC's filing of a suit. Finally, plaintiffs insist that it would be inequitable to allow the EEOC suit, which omits plaintiffs from its claim for liquidated damages, to supersede plaintiffs' action, in which liquidated damages were demanded.

 The arguments by both plaintiffs and Equitable regarding the statutory language cancel each other out, or at best, as is frequently the case, are inconclusive in their effect. The contentions consist substantially of the inevitable proposition that the use of particular words establishes that Congress "knew how to say" one thing or another when it wished to do so, and that it should therefore be concluded that when it did not do so, the failure was deliberate. There is only one weakness with this argument: it is not persuasive.

 The legislative history contains no discussion of the point in dispute here. In reference to section 626(c)(1), the House Report simply states that "rights of individuals to bring actions shall terminate when the Secretary commences an action." H.R.Rep.No.805, 90th Cong., 1st Sess. 2, reprinted in (1967) U.S.Code Cong. & Ad.News 2213, 2218. While the absence of any discussion of the provision supports plaintiffs' contention that a customary meaning of "bring" was understood and intended by Congress, both parties have argued that their proposed interpretation is the more customary. Equitable argues that by "bring," one ordinarily means "bring or maintain," while plaintiffs assert that to bring an action means, in common-place language, to file a lawsuit. While the answer is by no means obvious, plaintiffs' interpretation is closer to our understanding of the ordinary meaning of the phrase "to bring an action." In fact, when the precise question at issue here was before then District Judge Pierce, in Sheppard v. National Broadcasting Co., Inc., 24 Fair Empl. Prac. Cas. (BNA) 945, 22 EPD P 30876, 79 Civ. 3877 (S.D.N.Y. March 19, 1980), he denied the defendant's motion to dismiss, relying almost entirely on his interpretation of the statutory language:

"This section only restricts the right to "bring an action' thereunder. The statute does not expressly limit the right of a complainant to continue an action which was commenced prior to the commencement of a related action by the EEOC."

 However, the disposition of this motion need not rest solely on an exegesis of ordinary language usage. While the legislative history does not address the precise question at issue, it does specify that "(t)he investigation and enforcement provisions of the bill essentially follow those of the Fair Labor Standards Act." (1967) U.S.Code Cong. & Ad.News, supra, at 2218. The FLSA contains a cut-off provision which is very similar to the ADEA cut-off provision and, fortunately, the FLSA legislative history is more enlightening. The House-Senate Conference Report as to that statute states:

"The filing of the Secretary's complaint against an employer would not, however, operate to terminate any employee's rights to maintain ... a private suit to which he had become a ...

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