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Equal Employment Opportunity Commission v. Baltimore County

United States District Court, D. Maryland

October 28, 2019

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
BALTIMORE COUNTY, et al., Defendants.

          MEMORANDUM OPINION

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE

         Baltimore County (“Defendant” or “the County”) has been found liable under the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621, et seq. for administering a pension plan which required older employees to pay higher contribution rates than their younger counterparts.[1] This Court must now determine the scope of the retroactive monetary relief, or back pay, that the Equal Employment Opportunity Commission (“EEOC”) may seek from the County on behalf of the aggrieved employees.

         Two Motions are now pending before this Court: Baltimore County's Motion for Ruling on Scope of Class and Class Period (ECF No. 264) and the EEOC's Motion for Determination on the Temporal Scope of Back Pay Owed and Class Eligibility (ECF No. 265). On October 16, 2019, this Court conducted a hearing on these Motions and made rulings from the bench. This Memorandum Opinion supplements these rulings. For the reasons stated on the record and herein, Baltimore County's Motion for Ruling on Scope of Class and Class Period (ECF No. 264) is GRANTED IN PART and DENIED IN PART. The EEOC's Motion for Determination on the Temporal Scope of Back Pay Owed and Class Eligibility (ECF No. 265) is GRANTED IN PART and DENIED IN PART. The EEOC may seek back pay which accrued between March 6, 2006 and April 26, 2016. The EEOC is entitled to pursue discovery concerning an alternative cut-off date of January 1, 2019. By agreement of the parties, the class is defined in the manner set forth in Exhibit 2 of the County's Motion (ECF No. 264-3), except as modified in the manner indicated in this Opinion.

         BACKGROUND

         The facts of this case have been recited numerous times. See EEOC v. Baltimore Cty., 747 F.3d 267, 270 (4th Cir. 2014); EEOC v. Baltimore Cty., 202 F.Supp.3d 499, 502-05 (D. Md. 2016); EEOC v. Baltimore Cty., No. L-07-2500, 2012 WL 5077631, at *1 (D. Md. Oct. 17, 2012); EEOC v. Baltimore Cty., 593 F.Supp.2d 797, 799 (D. Md. 2009). This Opinion provides a general overview of the case with a focus on its current procedural posture.

         In 1945, the County established a mandatory Employee Retirement System (the “pension plan”), under which employees were eligible to retire and receive pension benefits at age 65, regardless of their length of employment. EEOC v. Baltimore Cty., 747 F.3d 267, 270 (4th Cir. 2014). To fund the pension plan, employees were required to make contributions at rates calculated by the County's actuarial firm, Buck Consultants. Id. Under the contribution rates recommended by Buck Consultants and adopted by the County, “the older that an employee was at the time of enrollment [in the pension plan], the higher the rate that the employee was required to contribute.” Id. Although the terms of the pension plan were modified several times in subsequent years, contribution rates remained higher for older employees. Id. at 271.

         “In 1999 and 2000, two County correctional officers, Wayne A. Lee and Richard J. Bosse, Sr., aged 51 and 64, respectively, filed charges of discrimination with the EEOC alleging that the County's plan and disparate contribution rates discriminated against them based on their ages.” Id. Over five and ½ years later, on March 6, 2006, the EEOC issued letters of determination finding that the County's pension plan violated the ADEA. After conciliation efforts failed, the EEOC filed the present action in 2007.

         In January 2009, Judge Benson E. Legg of this Court held that the pension plan did not violate the ADEA and granted Summary Judgment in favor of the County. See EEOC v. Baltimore Cty., 593 F.Supp.2d 797 (D. Md. 2009). The United States Court of Appeals for the Fourth Circuit vacated the decision. EEOC v. Baltimore Cty., 385 Fed.Appx. 322');">385 Fed.Appx. 322, 325 (4th Cir. 2010). On remand, this Court granted partial summary judgment for the EEOC on the issue of liability. EEOC v. Baltimore Cty., No. L-07-2500, 2012 WL 5077631, at *1 (D. Md. Oct. 17, 2012). Subsequently, the County was granted leave to file an interlocutory appeal. (Dec. 7, 2012 Letter Order 4, ECF No. 206.) The Fourth Circuit affirmed the ruling and remanded this case “for further proceedings to address the issue of damages.” EEOC v. Baltimore Cty., 747 F.3d 267, 274-75 (4th Cir. 2014).

         On April 22, 2016 the parties and all six unions representing the County employees participating in the pension plan agreed to a Joint Consent Order (ECF No. 238), which resolved the EEOC's claims for injunctive relief. The Consent Order required the County to equalize pension plan contribution rates by July 1, 2018. (ECF No. 238 at ¶¶ 15, 16.) On April 26, 2016, this Court approved the Joint Consent Order by marginal order. (ECF No. 238).

         On May 6, 2016, the EEOC moved for a determination on the availability of retroactive and prospective monetary relief. Subsequently, this Court issued an Opinion holding that the ADEA granted courts discretion to fix appropriate relief upon a finding of age discrimination and determined that neither retroactive nor prospective relief was appropriate in this case. EEOC v. Baltimore Cty., 202 F.Supp.3d 499, 505-11 (D. Md. 2016). The EEOC appealed this Court's determination concerning the back pay award, but did not appeal this Court's denial of prospective relief. EEOC v. Baltimore Cty., 904 F.3d 330, 332 n.2 (4th Cir. 2018).

         On September 19, 2018, the United States Court of Appeals for the Fourth Circuit vacated this Court's judgment, holding that “a retroactive monetary award of back pay under the ADEA is mandatory upon a finding of liability.” Id. at 333. The Court remanded the case to this Court “for a determination of the amount of back pay to which the affected employees are entitled under the ADEA.” EEOC v. Baltimore Cty., 904 F.3d at 335. Following the Fourth Circuit's decision, Baltimore County filed a petition for writ of certiorari to the United States Supreme Court. On June 17, 2019, the Supreme Court denied the petition and proceedings in this Court resumed. (ECF No. 256.)

         In August 2019, the parties submitted correspondence indicating that they sought this Court's ruling on the temporal scope of the back pay award, the scope of the class of aggrieved individuals for whom the EEOC could pursue a backpay award, and various other legal matters necessary to the resolution of this case. (ECF No. 262.) Subsequently, the parties simultaneously filed two motions which are now pending: Baltimore County's Motion for Ruling on Scope of Class and Class Period (ECF No. 264) and the EEOC's Motion for Determination on the Temporal Scope of Back Pay Owed and Class Eligibility (ECF No. 265).

         ANALYSIS

         The parties present three issues for this Court's resolution. First, the parties ask this Court to determine whether the EEOC must follow the procedures associated with collective actions brought under the Fair Labor Standards Act, including the requirement that employees “opt in” to join the EEOC's lawsuit. Second, the parties seek clarification concerning the temporal scope of the back pay to be awarded. Finally, this Court must define the scope of the class of employees on whose behalf the EEOC may seek back pay. This Opinion addresses these issues seriatim, all of which were addressed at the hearing of October 16, 2019.

         I. The EEOC is not required to adhere to the procedural requirements of collective actions under the Fair Labor Standards Act.

         The Age Discrimination in Employment Act is “‘something of a hybrid,' combining features of several other statutes.” EEOC v. Gilbarco, Inc., 615 F.2d 985, 988 (4th Cir. 1980) (quoting Lorillard v. Pons, 434 U.S. 575, 578, 98 S.Ct. 866 (1976)). The ADEA provides a private cause of action for aggrieved employees and, alternatively, permits the EEOC to pursue back pay on their behalf. See 29 U.S.C. § 626(a), (b), & (c). The statute does not provide its own, discrete procedures governing an action instituted by the EEOC. Instead, § 626(b) mandates that the ADEA “shall be enforced in accordance with the powers, remedies, and procedures provided in” certain provisions of the Fair Labor Standards Act. Among these provisions are §§ 16(b) & (c) of the FLSA, as amended, 29 U.S.C. § 216(b) & (c). The two provisions govern two very different types of FLSA actions. Section 16(b) governs collective actions brought by employees on behalf of themselves and others similarly situated, while § 16(c) governs actions brought by the Secretary of Labor on behalf of aggrieved employees. Collective actions under § 16(b) require employees to “opt-in, ” or consent, to suit. Id. Section 16(c) does not explicitly require the Secretary of Labor to obtain the consent of employees before pursuing an action to recover wages on their behalf.

         The County argues that the EEOC must follow procedures associated with FLSA collective actions under § 16(b), including the requirement that it obtain the consent of Baltimore County employees before seeking monetary relief on their behalf. See 29 U.S.C. § 216(b). During the Motions Hearing, counsel for the County candidly acknowledged that his argument was “strictly statutory” and that he was unable to locate any case law in support of this proposition. For its part, the EEOC argues that the procedures outlined in § 16(c) govern this action and, accordingly, it is not required to obtain the consent of employees before pursuing back pay on their behalf. In its briefing and at oral argument, the EEOC cited persuasive authority to this effect. EEOC v. Chrysler Corp., 546 F.Supp. 54 (E.D. Mich. 1982) (holding that EEOC need not obtain consent of employees when pursuing an enforcement action under the ADEA), aff'd 733 F.2d 1183 (6th Cir. 1984); see also EEOC v. New Mexico Dep't of Corrs., Civ. No. 15-879 KG/KK, 2017 WL 6001752 (D.N.M. Dec. 4, 2017) (applying § 16(c) to EEOC enforcement action under the ADEA and concluding that the EEOC need only identify employees by name in its complaint or equivalent pleading to satisfy § 16(c)'s procedural requirements); EEOC v. Hi-Line Electric Co., No. 3:09-CV-1848-F, 2012 WL 13026824 (N.D. Tex. Jan. 10, 2012) (same).

         The ADEA's statutory scheme plainly permits the EEOC to pursue an enforcement action under its provisions without obtaining the consent of the employees it seeks to benefit. The ADEA permits private actions by individuals and by the EEOC. See 29 U.S.C. § 626(a), (b), and (c). The FLSA has a parallel structure: it permits actions by private employees and the Department of Labor. See 29 U.S.C. § 216(b) and (c). The ADEA expressly incorporates these provisions of the FLSA. See 29 U.S.C. § 626(b). When the EEOC files suit under the Age Discrimination in Employment Act pursuant to its authority under § 626(b), it must look to § 216(c) of the Fair Labor Standards Act for the procedures it must follow. These procedures do not require the Secretary of Labor, or the EEOC, to obtain the consent of employees before pursuing an action on their behalf. See EEOC v. City of Chicago, No. 85 C 8327, 1987 WL 15388, at *1 (N.D. Ill. 1987) (remarking upon the parallel structure of the two statutes and concluding that the EEOC need not seek the consent of employees when pursuing an action under the ADEA). There is simply no reason to read these statutes in such a way as to require the EEOC to obey the procedures governing private actions under the FLSA while ignoring those governing administrative enforcement actions under the FLSA.

         When pursuing and ADEA action under § 16(c), the EEOC is not required to obtain the consent of employees. The statute's plain language and its history support this conclusion. As previously noted, the plain language of § 16(c) does not require the relevant enforcing agency-in this case, the EEOC-to obtain consent or follow the opt-in procedures described in § 16(b). As discussed in Chrysler Corp., at the time of the ADEA's enactment in 1967, § 16(c) required the Secretary of Labor to obtain the consent of employees before compelling the payment of unpaid wages on their behalf. 546 F.Supp. at 73. In 1974, Congress amended the FLSA to eliminate the consent requirement. Id. In 1978, Congress made several amendments to the ADEA, but made no effort to retain the consent requirement formerly codified in the FLSA. Id. at 74. As explained in greater detail in the Chrysler Corp. decision, Congress's actions invite the inference that “the elimination of the consent requirements from the FLSA § 216(c) also removes that requirement from ...


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