United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
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
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.
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).
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).
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
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.)
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).
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,
The EEOC is not required to adhere to the procedural
requirements of collective actions under the Fair Labor
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.
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)
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.
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 ...