Schwed v. General Electric Co.

159 F.R.D. 373, 1995 U.S. Dist. LEXIS 721, 1995 WL 21986
CourtDistrict Court, N.D. New York
DecidedJanuary 17, 1995
DocketNo. 94-CV-1308
StatusPublished
Cited by34 cases

This text of 159 F.R.D. 373 (Schwed v. General Electric Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwed v. General Electric Co., 159 F.R.D. 373, 1995 U.S. Dist. LEXIS 721, 1995 WL 21986 (N.D.N.Y. 1995).

Opinion

MEMORANDUM-DECISION & ORDER

HURD, United States Magistrate Judge.

Plaintiffs moved this Court pursuant to 29 U.S.C. 216(b) for an order directing defendant to provide the names and addresses of all potential plaintiffs herein and authorizing court-approved notice of pendency of action to be mailed to such potential plaintiffs1. The potential plaintiffs are described as salaried, exempt employees, 40 years of age or over, employed by General Electric Company at the Industrial and Power Systems in Schenectady, New York, and involuntarily dis[375]*375charged, laid off, terminated, downgraded, demoted, or forced to retire from employment by General Electric Company pursuant to or in connection with a staff reduction action and/or layoff announced on or about February 3, 1994 and implemented on or about April 1-4, 1994.

Defendants oppose the motion, stating that it is premature, and the proposed class is too broad. Defendants propose that the potential class be limited to the Sourcing department. The court heard oral arguments on January 12, 1995.

FACTS

The two named plaintiffs were long-term employees of the Industrial and Power Systems (“I & P”)2 division of General Electric Co. (“GE”). Plaintiff Sehwed began employment with GE in 1964, and was ineligible for immediate retirement benefits when laid off effective April 4, 1994. Plaintiff McMaster was employed beginning in 1966, and was involuntarily retired as of April 1, 1994. At the time of their terminations, both plaintiffs were employed in the Sourcing department within the I & P division. With their motion papers, plaintiffs submitted a sworn consent to join the class action, by Douglas Lauser, who was employed in the Decision Support Operation department of I & P, was laid off effective April 4, 1994, and was over age 40 at that time.

Plaintiffs claim that reductions in force (layoffs and early retirements) were done with disparate impact upon employees over the age of forty in violation of the Age Discrimination in Employment Act (“ADEA”). Defendant contends that the reductions were necessary due to budget cuts, and that each department determined the employees to be cut based upon performance, productivity/contribution, adaptability/versatility, criticality of skills and years of service. The General Manager of the Sourcing department approved the cut of 12 exempt positions from that department. The Sourcing department previously had 177 employees, and was an operation within I & P.

DISCUSSION

The court has discretion to facilitate notice to potential plaintiffs in class actions brought under the ADEA, and to order discovery of names and addresses of the potential class members. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482,107 L.Ed.2d 480 (1989). The court may exercise that discretion when the plaintiffs establish that similarly situated potential class members exist; however, it is unnecessary to show that putative class members share identical positions. See Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 405, 407 (D.N.J.1988) (putative class members “victims of single decision, policy, or plan infected by discrimination”) (citations omitted), aff'd, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989); Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D.Minn. 1991) (requiring “evidence establishing at least a colorable basis for claim” that similarly situated potential plaintiffs exist); Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674, 676 (S.D.N.Y.1981); but see Heagney v. European American Bank, 122 F.R.D. 125, 127 (E.D.N.Y.1988) (declining to direct or prohibit notice to potential plaintiffs). Moreover, even where later discovery proves the putative class members to be dissimilarly situated, notice to those preliminarily identified as potential plaintiffs prior to full discovery is appropriate as it may further the remedial purpose of the ADEA. See Frank, 88 F.R.D. at 676; see also Krueger v. New York Tel. Co., Nos. 93 CIV. 0178 (LMM), 93 CIV. 0179 (LMM), 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993) (early discovery “may enable more efficient resolution of the underlying issues”).

It is uncontested that this court has the discretion to authorize notice. Further, the court finds that notice is appropriate at this stage of the litigation. See Severtson, 137 F.R.D. at 267. Given the remedial nature of the ADEA and the preliminary stage at which we are in the litigation, plaintiffs need only describe the potential class within [376]*376reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.

Plaintiffs have made a reasonable request for discovery and notice. The potential class is limited to employees at a specific geographic location, Schenectady, New York. Plaintiff limits the potential class to salaried, exempt employees receiving notice of adverse employment action on February 3, 1994, which became effective on April 1^4, 1994. The potential class is also limited only to employees in the I & P division, and not extended to all employees in Schenectady. Finally, providing the names and addresses requested will not be unduly burdensome to defendant, as a total of only approximately 500 persons of all ages were affected by the reduction in force at issue here.

The plaintiffs have also provided a sufficient factual basis for a finding that similarly situated potential plaintiffs exist. The complaint alleges employment action which disparately impacted upon persons aged 40 or over. In support of this motion, plaintiffs submitted two affidavits, from former employees of the I & P division in Schenectady. Both affiants state that they were told by their supervisors that the reduction in force determination was made based upon a ranking system. Defendants in opposition submitted the affidavit of Ralph J. Kelsey, General Manager of the Sourcing department, who also states that a ranking system was used to determine reductions. The ranking systems in all three affidavits were similarly described. It remains a question from where the ranking system was derived; however, that question goes to the scope of the notice rather than the appropriateness of notice.

The two final issues, therefore, are the appropriate scope of the notice and the form thereof. While both named plaintiffs were employed in the Sourcing department, they argue that notice should be sent to all employees of the I & P division at General Electric, Schenectady, New York, who fit the potential plaintiff description. Where the scope of the notice to be sent is at issue, the court should look at the employer-employee relationship and determine the level of “intracorporate structure at which employment policies are formulated.” Frank, 88 F.R.D. at 677. Similarly to the question of the appropriateness of notice, it is the plaintiffs burden to establish which corporate entity fulfills the employer role. Id. at 678.

In Frank, the court looked at the corporate structure of the entity. Capital Cities Communications, Inc. was the top corporate level, with 5,000 employees.

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Bluebook (online)
159 F.R.D. 373, 1995 U.S. Dist. LEXIS 721, 1995 WL 21986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwed-v-general-electric-co-nynd-1995.