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EEOC v. CONSOLIDATED EDISON CO. OF NEW YORK

February 22, 1983

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant, ANSELMO CARDILLO, FRANK BASILE, ANTHONY CASBARRO, FRANK CASSARO, [sic] JAMES CASSIDY, ERNIE FORDE, RALPH FOUSE, HAMILTON KANE, JOSEPH KENNAN, VINCENT MACIOCI, THOMAS MCNAMARA, CHARLES MONDELLO, JACK MONTESERRATO, ANNA PASQUA, THOMAS QUINN, ARTHUR SCHILIRO, PHIL SPINELLI, PETER DEVITO, JOSEPH ELLIOT and JOSEPH LUCKETT, Individually and on behalf of all others similarly situated, Movants; ANSELMO CARDILLO, et al., Plaintiffs, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant



The opinion of the court was delivered by: SAND

SAND, J.

 On March 4, 1980, three days prior to the date upon which the statute of limitations would have barred any claims against Consolidated Edison for the terminations at issue herein, the United States Equal Employment Opportunity Commission (the "EEOC") commenced the proceeding EEOC v. Consolidated Edison, 80 CIV 1292 (LBS) (the " EEOC action") pursuant to section 7(b) of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 626(b), and sections 16(c) and 17 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 216(c), 217. The complaint alleged, inter alia, that defendant Consolidated Edison ("Con Edison") had, since March 3, 1977, willfully violated the ADEA by:

 
"discriminating on or about March 7, 1977, against certain non-union employees, including but not limited to the employees listed on Exhibit A annexed hereto and incorporated herein who were employed by defendant and who were then between the ages of 40 and 65, with respect to their compensation, terms, conditions or privileges of employment by discharging them, and/or involuntarily retiring them because of their age; and by . . . .
 
discriminating against employees who were then between the ages of 40 and 65 with respect to their compensation, terms, conditions or privileges of employment by refusing to hire them because of their age."

 Complaint paras. 7, 8. The relief sought included a judgment enjoining Con Edison from violating the ADEA; an order requiring Con Edison to institute policies, practices and affirmative action programs that provide equal employment opportunities for individuals protected by the ADEA; and reinstatement and backpay, as well as liquidated damages, for those former Con Edison employees on whose behalf the EEOC brought suit (the "claimants"). No judicial action against Con Edison had been commenced by any claimant prior to the filing of the EEOC suit.

 More than two years of extensive discovery and pretrial preparation followed, during which over 200 depositions were conducted, more than 100,000 pages of documents were reviewed (Affidavit of Howard L. Ganz, dated Jan. 17, 1983, para. 4), and numerous motions were vigorously argued and decided by the Court. See, e.g., Opinion, dated January 21, 1981; Opinion, dated June 2, 1981; Order, dated June 23, 1981; Order, dated September 9, 1981; Opinion, dated February 24, 1982; Opinion, dated May 10, 1982; Order, dated July 6, 1982; Memorandum Endorsement, dated October 1, 1982; Order, dated October 14, 1982.

 Upon the eve of trial and upon the suggestion of the Court, the EEOC and Con Edison engaged in settlement discussions, the result of which was a proposed settlement. All of the claimants but three -- for whom the EEOC lacked correct addresses -- were then notified by mail. Partly in response to the vociferous opposition that these notices evoked from some of the claimants -- as expressed in written communications addressed to the Court and forwarded to the EEOC -- the EEOC invited all claimants to a meeting held on December 4, 1982, to explain further the proposed settlement and to answer any remaining questions. Once again, some claimants expressed their strong dissatisfaction.

 On December 13, 1982, the EEOC and Con Edison entered into a Settlement of Agreement (the "settlement") which to some unspecified extent had been modified to reflect expressions of dissatisfaction. Briefly stated, the settlement provides for the payment of benefits worth approximately $3.5 million dollars to the claimants. Each of the terminated Con Edison employees who has remained alive and has not "withdrawn" as a claimant *fn1" will recover money under the settlement. The sums ultimately paid to each claimant do not take into account the merits of the particular case but rather are based on the claimant's age: upon attaining the age of 65, each claimant will receive for the duration of his life a monthly payment of at least $100.00, pursuant to an annuity contract purchased in his behalf by Con Edison. Each claimant will also receive a presently indeterminable lump-sum payment inversely related to the claimant's age as of March 7, 1977. Further, the settlement provides that it is the "explicit and essential agreement" between the parties that all claims asserted by the EEOC be "resolved and settled in full" and "dismissed with prejudice". Agreement of Settlement para. 7, annexed as Exhibit C to the Affidavit of Howard Ganz, Esq., dated January 17, 1983.

 On December 13, 1982, the parties also entered into on December 13th, a Stipulation of Dismissal with Prejudice, which the Court "So Ordered" on the following day. In so doing, the Court noted:

 
"A number of former employees of the defendant have written to the Court expressing views with respect to the appropriateness of the within settlement. Some of these communications reflect a misunderstanding of the Court's role in approving this settlement.
 
This suit is not a class action nor does it fall within any other of the limited categories of cases in which a Court is called upon to determine the fairness or desirability of a proposed settlement. In approving this settlement, this Court merely acknowledges that the parties have exercised the right, which they have, to discontinue this litigation."

 On December 16, 1982, twenty claimants, dissatisfied with the terms of the settlement, commenced the action captioned Cardillo, et al. v. Consolidated Edison, 82 CIV 8400 (LBS) (the " Cardillo action"). The complaint describes the plaintiffs as Con Edison employees who were discharged from employment in March, 1977, when they were between the ages of 40 and 65, and assert violations of ADEA identical to those alleged by the EEOC in the EEOC action. It is not disputed that each plaintiff in the Cardillo action is a claimant in the EEOC action and that both seek to redress the same alleged ADEA violations by Con Edison. *fn2"

 THE MOTIONS

 In the EEOC proceeding, the group of claimants appearing as plaintiffs in the Cardillo case (hereafter "movants") have moved this Court for an order pursuant to Fed.R.Civ.Proc. 60(b)(6) dismissing the action without prejudice to the employees who refuse to accept the terms of the settlement entered into by the parties and to allow them to litigate their claims in the Cardillo proceeding or an order allowing the movants to "opt-out" of the settlement and directing the EEOC to prosecute their claims; or, in the alternative, an order pursuant to Fed.R.Civ.Proc. 24(a)(2) allowing movants to intervene, ...


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