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AVAGLIANO v. SUMITOMO SHOJI AMERICA

July 10, 1985

LISA M. AVAGLIANO, et al., Plaintiffs,
v.
SUMITOMO SHOJI AMERICA, INC., Defendant PALMA INCHERCHERA, Plaintiff, vs. SUMITOMO CORP. OF AMERICA, Defendant



The opinion of the court was delivered by: TENNEY

TENNEY, J.

The plaintiffs brought these actions under 42 U.S.C. § 1981 (1982) ("Section 1981"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982) ("Title VII") alleging employment discrimination on the part of the defendant, Sumitomo Corporation of America ("Sumitomo"), formerly Sumitomo Shoji America, Inc. The plaintiffs claim that Sumitomo has a practice of hiring only male Japanese citizens to fill positions above the clerical level and that this practice results in discrimination based on sex, national origin, and race. The plaintiffs are seeking both injunctive relief and damages. *fn1"

The action in Avagliano and Incherchera were consolidated for the purposes of discovery. *fn2" In a recent opinion, the Court granted the plaintiffs' motion for class certification and designated three nationwide classes, consisting of past and present employees of Sumitomo. *fn3" The Court also directed the parties to brief the issues addressed herein.

 Three questions are currently before the Court: (1) Should notice be given to class members at this time? (2) What time limitations apply to the plaintiffs' Title VII claims? and (3) What statute of limitations applies to the plaintiffs' Section 1981 claims? These issues are resolved below.

 DISCUSSION

 I. Notice

 The defendant argues that individualized notice and the right to opt out of each class should be given to all potential class members. The plaintiffs agree that notice should be given, but argue that notice concerning the pending action should be posted on bulletin boards in the workplace, and that an opt-out provision should not be included in the notice. The Court agree with the plaintiffs.

 Notice and the right to opt out are not required in this case. Notice to class members is not mandatory where -- as here -- the class has been certified under Federal Rule of Civil Procedure ("Rule") 23(b)(2) ("(b)(2)"). See Frost v Weinberger, 515 F.2d 57, 65 (2d Cir. 1975), cert. denied sub nom. Frost v Mathews, 424 U.S. 958, 47 L. Ed. 2d 364, 96 S. Ct. 1435 (1976); Arthur v Starrett City Assoc., 98 F.R.D. 500, 508 (E.D.N.Y. 1983); see generally Newburg on Class Actions, §§ 7992-7992d (1978 and Cum. Supp. 1980 and Supp. 1984) ("Newburg"). As long as representation of the class is adequate, due process does not mandate that notice be given to individual class members. See Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 256 (3d Cir.), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). Further, there is no requirement in a (b)(2) class action that class members be given the right to opt out of the class. See Plummer v. Chemical Bank, 668 F.2d 654, 657 n.2 (2d Cir. 1982); Arthur v Starrett City, 98 F.R.D. at 508; Wilder v. Bernstein, 499 F. Supp. 980, 993 n.30 (S.D.N.Y. 1980).

 Nevertheless, it is within the court's discretion to direct that notice be given, where appropriate, at any stage in the action. Rule 23(d)(2); see Vulcan Soc'y v. Fire Dep't. 82 F.R.D. 379, 402 (S.D.N.Y. 1979); Women's Committee for Equal Employment Opportunity v. NBC, Inc., 71 F.R.D. 666, 671 (S.D.N.Y. 1976). Although some form of notice may be appropriate in (b)(2) class actions, "experience teaches that such notice may come late in the litigation." United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 878 (2d Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1684, 48 L. Ed. 2d 187 (1976).

 In order for a class to be certified under (b)(2), the defendant must have acted in a manner alleged to be hostile to the entire group, and the relief sought must be relief that is applicable to the class as a whole. See United States v. Allegheny-Ludlam, 517 F.2d at 878; Wetzel v. Liberty Mutual, 508 F.2d at 250; Practice Commentary to Rule 23(b)(2). "Courts and commentators alike recognize that Rule 23((b)(2) was intended for use in civil rights cases, including employment discrimination litigation." Newberg, § 7992. Such actions are usually certified under(b)(2) because the plaintiff class is homogeneous, id., and the conduct is challenged on a ground that is applicable to the entire class. See 7A C. Wright and A. MIller, Federal Practice and Procedure § 1775 (1971 and 1984 Supp.) ("Wright and Miller").

 Several factors weight against providing either individualized notice or the right to opt court. See 7A Wright and Miller, § 1793. First, since the (b)(2) class is a homogeneous one, fair and adequate representation by the named plaintiffs serves to ensure that the interests of all class members are protected. See Kyriazi v. Western Electric Co., 647 F.2d 388, 393 (3d Cir. 1981) (quoting Van Gemert v. Boeing Co., 259 F. Supp. 125, 130 (S.D.N.Y. 1966)). Second, because it is often difficult to determine the identity of every class member, requiring individualized notification and providing the right to opt out would delay the final resolution of (b)(2) class action. See Paddison v. Fidelity Bank, 60 F.R.D. 695, 699-700 (E.D. Pa. 1973); Advisory Rules Committee Notes on Rule 23(b)(2); "Suits brought by private employees are the cutting edge of the . . . sword which Congress has fashioned to fight. . . discrimination in employment. . . The imposition of notice and the ensuing costs often discourage such suits." Wetzel v. Liberty Mutual, 508 F.2d at 254; accord, Newberg, § 7992b (Requiring notice in "(b)(2) employment class actions would have the undesirable effect of inhibiting meritorious class litigation in the public interest.").

 In the instant action, the class has been certified as a (b)(2) class, and therefore, notice and the right to opt out are not mandatory. *fn4" The group is a homogeneous one -- made up of past and present female employees alleging discrimination by the defendant -- and the class is adequately represented. See 103 F.R.D. at 583. Therefore, the Court finds that there is no need for individualized notice with the right to opt out at this point in the litigation. Accordingly, the defendant's request for such notice is denied. *fn5"

 Nevertheless, the defendant's argument that "notice would serve a number of very valuable purposes" is persuasive. *fn6" The plaintiffs suggest, and the Court agrees, that a general notice -- without an opt out-provision -- describing the pending action should be posted on bulletin boards at the defendant's offices.

 Although this type of notice may not reach all potential plaintiffs, particularly those who are no longer employed by the defendant, such notice is sufficient at this stage of the litigation. It will serve to apprise many of the potential class members of the issues involved in the litigation. See Marcera v. Chinlund, 91 F.R.D. 579, 585 (W.D.N.Y. 1981). In addition, the defendant has expressed concern that the only information some employees have obtained about this case has been obtained through rumor or gossip. *fn7" Posting notices will end unfounded speculation concerning the nature of the action. ...


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