The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
Plaintiffs claim that defendants violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. by terminating the employment of the individual plaintiffs (Barrett, Terraciano and Samuels and other similarly situated) as bus drivers when they reached the age of sixty-five. Federal jurisdiction is asserted under 29 U.S.C. § 626(c). Commissioner of Education of the State of New York ("State defendant") moves to consolidate these two separate actions. Prior to this motion to consolidate, the State defendant had moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) the respective plaintiffs' complaints in the two separate actions. The motion to dismiss was joined by the other two defendants in the CV 84-0471 action. In the CV 83-4307 action, Suffolk Transportation Services, Inc. ("Suffolk") joined this motion to dismiss to the degree it sought dismissal of plaintiffs' complaint and opposed it to the extent it sought dismissal of their third party complaint against Suffolk. Familiarity with the facts enumerated in this court's previous memorandum of decision and order denying Suffolk's motion to dismiss, Barrett v. Suffolk Transportation Services, Inc., No. 83-4307 (E.D.N.Y. May 22, 1984)(unpublished decision), is assumed for purpose of this decision.
By order issued from the bench on December 6, 1984, the motion to consolidate these two separate actions (CV 83-4307, CV 84-0471) is granted and these cases are now consolidated for all purposes.
It is well settled that a complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80. The defendants premise their motion to dismiss on five grounds: (1) EEOC lacks jurisdiction to bring this action and as a result, the individual plaintiffs have failed to exhaust their administrative remedies; (2) EEOC has not fulfilled the conciliation requirement under the ADEA; (3) the Second Circuit's summary affirmance in Maki v. Commissioner of Education, 568 F. Supp. 252 (N.D.N.Y.1983), aff'd without published opinion, 742 F.2d 1437 (1984), is binding precedent on this court; (4) the State defendant was improperly served; and (5) sovereign immunity of the Eleventh Amendment bars any suit against the State defendant.
Although EEOC's jurisdiction was cast in doubt by the landmark decision of the Supreme Court in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), and by the Second Circuit's decision in EEOC v. CBS, Inc., 743 F.2d 969 (1984), the recent federal law enacted on October 19, 1984 removes any questions posed by Chadha and its progeny regarding the EEOC's jurisdictional authority. Pub.L. No. 98-532. Thus, this issue raised by the defendants is mooted by the new federal law.
2. Conciliation Requirement
Pursuant to 29 U.S.C. § 626(b), the EEOC is required to "attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of [the ADEA] through informal methods of conciliation, conference and persuasion." The EEOC must "use exhaustive, affirmative action to attempt to achieve concilation before legal action is begun." Brennan v. Ace Hardware Corp., 495 F.2d 368, 374 (8th Cir.1974); see Marshall v. Arlene Knitwear Corp., 454 F. Supp. 715, 721-23 (E.D.N.Y.1978), aff'd in part, rev'd in part on other grounds and remanded without published opinion, 608 F.2d 1369 (2d Cir. 1979). The EEOC sent letters to Suffolk and BOCES notifying them that it was interested in resolving the possible violation of the ADEA and followed these letters up with with telephone conversation. The defendants' responses were that unless New York law changed, it would not change its practice of terminating the employees in question. Based upon the pleadings, the court cannot conclude as a matter of law that EEOC did not comply with the ADEA's conciliation requirement.
This court has already ruled in its previous memorandum of decision and order dated May 22, 1984 that " Maki's summary affirmance [by the Second Circuit] has no precedential value for this court." Barrett v. Suffolk Transportation, Inc., supra, slip op. at 4. Thus, ...