Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:00-cv-00705-CFD Document 152-4 Filed 06/28/2005 Page 1 of 2
LEXSEE 1984 USDISTLEXIS 21259
LIBRONT, et al. v. COLUMBUS McKINNON CORPORATION
No. CIV-83-858E
United States District Court for the Western District of New York
1984 US. Dist. LEXIS 21259; 36 Fair Empl. Prac. Cas. (BNA) 878
December 13, 1984
_ The [*2] Complaint additionally states that
C°UNSEL· [*1] . defendant had purposefully utilized a scheme to force
Willard M. Pottle, Jr., Buffalo, N.Y., for plaintiffs. management and office rank employees, such as Libront,
Wmiamli Ricth, Buffalo, NY-, for defendant, who were over forty yet-less than seventy years old, to
accept early retirement in order to replace them with
younger individuals. Plaintiffs, Barnes and Quesnell
OPINIONBY: have alleged that they were terminated from defendant's
ELFVIN employ in July 1982 due to their ages -- fifty-five and
fifty-six, respectively -— and that they were replaced by
individuals under forty years of age.
OPINION: Plaintiffs originally had sought to represent a class
ELFVIN, District Judge: -- In this action under the of approximately one hundred former employees of
Age Discrimination in Employment Act ("the ADEA"), defendant pursuant to Fea'.R.Civ.P. rule 23(b). However
29 U.S. C. § 621 et seq. and the Fair Labor Standards Act this Court ruled December 5, 1983 that Certification ofa
("the FLSA"), 29 U.S. C. § 201 et seq., plaintiffs have class under rule 23 would not be proper in this case
moved for Court authorization to send notice of the inasmuch as subsection (c) of rule 23 provides for an
pendency of this action to other potential plaintiffs and "opt-out" class action procedure and section l6(b) of the
defendant has moved to strike all class action allegations FLSA (29 USC § 2I6(b)), which the ADEA has
from the Complaint and for partial summary judgment incorporated by its section 7(b) (29 U.S.C. § 626(b)),
with respect to plaintiff Librent's cause of actigrr allows as class members only those individual who have
_ _ _ , "opted—in" to the lawsuit, Accord LaChapelle v. Owens-
l The complaint alleges inter alia that m July 1982 Illinois, Inc" 513 F·2d 286 (5th Cir'l975).
Libront, then sixty-four years old and an employee of
defendant for over twenty-six years, had been informed Plaintiffs now seek authorization from this [*3]
by defendant's manager of corporate personnel that he Court to send notices concerning this action to other
was going to be laid eff as of July 31, 1982 and that he potential plaintiffs, containing information as to such
could either accept an offered early retirement plan or be persons' ability to opt into the present litigation.
terminated without such plan's benefits. It is further Although it is clear that this Coun possesses the
alleged that subsequent to his July 30th acceptance discretionary power to authorize the sending of such a
"without prejudice" of early retirement, Lebrent was notice under appropriate circtunstances —- see Braunstein
replaced at the company by an individual under forty v. Eastern Photographic Laboratories, 600 F.2d 335 (2d
years ofage Cir. 1978), cert. denied, 441 US. 944 (1979); Frank v.
Capital Cities Communications, Inc., 88 F.R.D. 674

Case 3:00-cv-00705-CFD Document 152-4 Filed 06/28/2005 Page 2 of 2
Page 2
1984 U.S. Dist. LEXIS 21259, *; 36 Fair Empl. Prac. Cas. (BNA) 878
(S.D.N. K 1981) , defendant has argued that plaintiffs of those persons who wish to be involved in this case,"
have failed to shoulder their burden of demonstrating rather than the "opportunity to join" language presently
that the giving of notice is appropriate in the instant employed, and should also set forth the name, address
action. and phone set forth the name, address and phone number
. . f d 1.
Upon consideration of the remedial purposes of the O cfcnsc cmmsc
ADEA and the FLSA, the fact that the three-year statute The proposed "Consent to Join Class and Action"
of limitations for a willful violation of the ADEA form should delete plaintiffs' attorney's name and the
contained in 29 U.S. C. § 255(a) will soon expire as to phrase "the attorney for the plaintiffs herein" in order to
any employees allegedly improperly temiinated or forced avoid any pressure upon potential plaintiffs to retain such
to retire by defendant in or about July 1982, as well as counsel, and such form should also request the
the arguments by counsel for both parties, I find that it is individual's date of birth and date of termination or
appropriate for plaintiffs' attorney to send a Court- retirement from defendant's employ.
approved notice to potential plaintiffs rn this action. Cf., Having Considered the parties, Positions and
Frank v. Capztal [*4] Cities Communications, Inc., Submissions rc ardin the BO ta hic and time
supra; som V. ctw mc., 86 F.R.D. 524, 528-530 . . . g g * g g P
(SD N Y1980) lrrmtatrons that should [ 6] apply to any approved
' ’ ' ' ' notice, I hold that the eventual notice may be sent to
Plaintiffs counsel has submitted as an attachment to former employees of defendant, regardless of the
his "Second Reply Affidavit on Motion for CLass location at which they had worked for defendant, who
Certification and Other Relief," a proposed notice and had been terminated or who had elected early retirement
defendant has registered numerous objections to its form between July 1, 1982 and the August 3, 1983 filing of the
and substance. This Court has reviewed the proposed Complaint, and who were over forty years of age at the
notice and has found that certain of defendant's points time of their departure from defendant's employ.
have merit. The notice must therefore be redrafted and . , . .
. . . . . . Addressing defendants motion for partial summary
submitted to this Court prror to any mailing to potential . . . . . .
plaintiffs, judgment} my examination of the zgffidavrts lsaubrnittedlrrg
support o an in opposition to suc motion as revea e
Initially it is noted that the draft is headed by the the existence of numerous material and disputed factual
name of this Court and the caption of this case, which issues concerning Libront's acceptance "without
might give potential plaintiffs the erroneous impression prejudice" of the offered early retirement, thereby
that the notice is being sent by or at the request of the precluding any award of partial summary judgment.
Court. There is no reason that such notice cannot be sent In accordan S ith the fom Om C0 mel f I
on plaintiffs' counse1's stationery and in the form of a laimiff is hc bc diyct d t S bmigto Sic Cotim dz)
letter, provided that the notice advises potential plaintiffs p . S rc y C c O u. . in.
. . . opposmg counsel a proposed notice to potential plaintiffs
that they may retain attomeys of their own choosing to i th. t.0 .th th . i d. t d h .H Thi
file the requisite consent to join the action. The draft is tn is zzgéfzi W1 f di mv}; (mi, GFCCOG d CRB ’fWi1 I;
addressed to former employees of defendant, terminated Wen y ays O c Cn y O 1% I CL G cn an
after Januaryl 1981 who were over forty years of age shan have tcm (10) days to Submlt to the Coun Us
. ’ .’ . . objections, if any, to such notice and shall provide
at such time. In vrew [*5] of the allegations rn the . . , .
. . . . . plaintiffs counsel with the names and addresses [*7] of
Complaint the notice should only be sent to individuals . . . . . . .
h t . t d or who had le ted rl t.r t the potential plaintiffs delineated above wrthrn thirty (30)
w o were ermrna e e c ea yre 1 emen da S ofthe Cntr Ofthis Order
from defendant on or after July 1, 1982 and who were y y `
over the age of forty at such time. In addition, the draft, Defendant's motions to strike the Complaint's class
which almost mirrors the court-approved notice utilized action allegations and for partial summary judgment are
in M0nr0e v. United Air Lines, Inc., 90 F.R.D. 638, 64I- hereby ORDERED denied.
642 (N.D.Ill. 1981), should contain the language "This
notice is for the sole purpose of determining the identity