Rusis et al v. International Business Machines Corp.
Filing
156
OPINION AND RDER: re: 123 MOTION for Judgment on the Pleadings as to Constructive Discharge and Pretextual For-Cause Termination Claims filed by International Business Machines Corp., 129 MOTION for Judgment on the Pleadings as to the ADEA Cla ims of Plaintiffs Who Filed Defective Charges or Fall Outside the Temporal Scope of the Named Plaintiffs' Administrative Charges filed by International Business Machines Corp., 120 MOTION for Judgment on the Pleadings as to Arbitration Opt-Ins and to Compel Arbitration filed by International Business Machines Corp. For the reasons stated above, IBM's motions for judgment on the pleadings are GRANTED in part and DENIED in part. Named Plaintiff Eng's ADEA claims are dismissed wi th prejudice. The Arbitration Opt-Ins are dismissed without prejudice. The Court will permit the parties to engage in discovery, if necessary, to determine which opt-ins must be dismissed as a result of this opinion. Not later than April 23, 2021, th e parties must meet and confer to coordinate a proposed schedule for discovery - including a potentially bifurcated discovery schedule pursuant to which the parties first engage in discovery concerning the EEOC's investigation into IBM and the f actual circumstances surrounding certain opt-ins' and Named Plaintiff McGonegal's separations and for any subsequent motion practice, including Plaintiffs contemplated renewed motion for conditional certification of a proposed collective, any contemplated motion for decertification of the collective by IBM, and whatever other motion practice the parties anticipate will be necessary to define the proper scope of the ADEA opt-in collective in this action. Because the Court denied Plaint iffs initial motion for issuance ofnotice to potential opt-ins, the Court did not set a deadline for individuals to opt in to this action, as it would have if the Court had granted Plaintiffs' request for issuance of notice. Plaintiffs requested a 90-day notice period, which is standard in this district. Given that more than two and-a-half years have passed since Plaintiffs commenced this action and more than one year haspassed since the Court denied Plaintiffs' request for issuance of notice, the Court finds that former IBM employees have had ample time in which to opt in to this action. As such, the Court sets the date of this opinion as the deadline for former IBM employees to opt in to this case. Should the Court grant any sub sequent renewed motion for issuance of notice, the Court will consider reopening the opt-in period at that time. The Clerk of Court is respectfully directed to terminate the open motions at Dkt. 120, Dkt. 123, and Dkt. 129. SO ORDERED. (Signed by Judge Valerie E. Caproni on 3/26/2021) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
EDVIN RUSIS, HENRY GERRITS, PHIL
:
MCGONEGAL, and DAVID HO ENG,
:
individually and on behalf of all other similarly
:
situated individuals,
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Plaintiffs,
:
:
:
-against:
:
INTERNATIONAL BUSINESS
:
MACHINES CORP.,
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Defendant. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/26/2021
18-CV-8434 (VEC)
OPINION AND ORDER
VALERIE CAPRONI, United States District Judge:
In this putative class and collective action, Plaintiffs assert claims under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and related state claims
against their former employer, International Business Machines Corporation (“IBM”). See First
Amended Complaint (“FAC”) ¶ 1, Dkt. 11. IBM has filed three separate motions for partial
judgment on the pleadings, one of which also seeks to compel arbitration, pursuing the dismissal
of certain individual former IBM employees who have consented to opt-in to this action (the
“opt-ins”) and two Named Plaintiffs, or, at the very least, a Court ruling that certain subsets of
former IBM employees may not participate in this action. See Notices of Mtns., Dkt. 120; Dkt.
123; Dkt. 129. In debating IBM’s motions, the parties wage a fervent battle over the proper
contours of a judicially-created exception to the ADEA’s administrative exhaustion requirement
known as the single-filing rule or “piggybacking” doctrine, pursuant to which individuals who
themselves did not file an administrative charge of discrimination, and thereby failed to exhaust
their ADEA claims, may “piggyback” onto another’s properly filed administrative charge to
1
advance claims in litigation. On one side, Plaintiffs present the doctrine as a shield that ensures
that any former IBM employee, 40 years and older, who wishes to challenge the termination of
his or her IBM employment can participate in this case, regardless of the circumstances or timing
of the person’s departure from IBM. On the other side stands IBM, which wields the
piggybacking doctrine as a sword with which it can surgically remove from this case batches of
putative plaintiffs who did not file their own timely administrative charges. Although Plaintiffs
contend that their interpretation best accords with the purpose of the ADEA’s administrative
exhaustion requirement, in reality, Plaintiffs push the Court to adopt an interpretation that no
court before has endorsed and that would seemingly leave the piggybacking doctrine less an
exception to administrative exhaustion and more a reduction of the exhaustion requirement to a
requirement in name only. That notwithstanding, IBM at times flagrantly attempts to use the
piggybacking doctrine as a means to delimit the scope of Plaintiffs’ case, in contravention of the
generally lenient interpretation of the doctrine that governs in this circuit. Accordingly, for the
reasons stated below, IBM’s motions are GRANTED in part and DENIED in part.
BACKGROUND 1
Named Plaintiffs and those they seek to represent are all former IBM employees who
1
On a motion for judgment on the pleadings, as with a motion to dismiss, the Court accepts all factual
allegations in the complaint as true and draws all reasonable inferences in the light most favorable to Plaintiffs. See
Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191, 193 (2d Cir. 2015). For clarity’s sake, the Court refers to
the parties’ submissions as follows: Defendant’s Memorandum of Law in Support of Motion for Partial Judgment on
the Pleadings as to Arbitration Opt-Ins and to Compel Arbitration, Dkt. 121, as “Def. First Mem.”; Plaintiffs’
Response to IBM’s Motion for Partial Judgment on the Pleadings as to Arbitration Opt-Ins and to Compel
Arbitration, Dkt. 136, as “Pls. First Opp.”; Defendant’s Reply in Support of Motion for Partial Judgment on the
Pleadings as to Arbitration Opt-Ins and to Compel Arbitration, Dkt. 142, as “Def. First Reply”; Defendant’s
Memorandum of Law in Support of Motion for Partial Judgment on the Pleadings as to Constructive Discharge and
Pretextual For-Cause Termination Claims, Dkt. 124, as “Def. Second Mem.”; Plaintiffs’ Opposition to IBM’s
Motion for Partial Judgment on the Pleadings as to Constructive Discharge and Pretextual For-Cause Termination
Claims, Dkt. 137, as “Pls. Second Opp.”; Defendant’s Reply in Support of Motion for Partial Judgment on the
Pleadings as to Constructive Discharge and Pretextual For-Cause Termination Claims, Dkt. 143, as “Def. Second
Reply”; Defendant’s Memorandum of Law in Support of Motion for Partial Judgment on the Pleadings as to the
ADEA Claims of Plaintiffs Who Filed Defective Charges or Fall Outside the Temporal Scope of the Named
Plaintiffs’ Administrative Charges, Dkt. 130, as “Def. Third Mem.”; Plaintiffs’ Opposition to IBM’s Motion for
2
separated from the company at age 40 or older. Plaintiffs allege that, in an attempt to reframe its
public image and to shift into fields such as cloud services, big data analytics, mobile, and social
media, IBM heavily recruited younger workers while systematically pushing out older
employees. FAC ¶¶ 1, 15. Relying on reporting by ProPublica and IBM’s own publications,
Plaintiffs allege that IBM has engaged in a nationwide, companywide policy of eliminating
employees ages 40 and older to better position itself to compete with new technology companies.
Id. ¶¶ 15–18.
According to Plaintiffs, motivated by an overarching goal of reducing its headcount of
older employees, IBM employed a number of different methods to achieve its goal: (1) engaging
in “reductions in force or layoffs,” known at IBM as “Resource Actions”; (2) terminating older
employees for pretextual reasons; (3) constructively discharging older employees; and (4)
conditioning older employees’ employment on “untenable choices they [were] unlikely to accept,
such as relocation.” 2 Id. ¶ 19. Further, after selecting older employees for inclusion in a
Resource Action, IBM allegedly thereafter refused to hire those older employees for open
positions through IBM’s internal hiring platform, regardless of their qualifications. Id. ¶ 25.
Plaintiffs provide minimal detail on the Named Plaintiffs’ respective separations from
IBM other than the timing of their departures; thus, on the face of the FAC, it is not entirely clear
pursuant to which method of termination each departed from IBM. In March 2018, Named
Partial Judgment as to the ADEA Claims of Plaintiffs Who Filed Defective Charges or Fall Outside the Temporal
Scope of the Named Plaintiffs’ Administrative Charges, Dkt. 138, as “Pls. Third Opp.”; Defendant’s Reply in
Support of Motion for Partial Judgment on the Pleadings as to the ADEA Claims of Plaintiffs Who Filed Defective
Charges or Fall Outside the Temporal Scope of the Named Plaintiffs’ Administrative Charges, Dkt. 144, as “Def.
Third Reply.”
2
In their papers, the parties refer to the fourth category of terminations, in which an employee was forced to
choose between relocating or retiring, as part of the larger umbrella of constructive discharge. Because it has no
bearing on any of the Court’s holdings in this opinion, the Court does the same.
3
Plaintiffs Edvin Rusis and Henry Gerrits each received notice that he would be “laid off,”
effective June 27, 2018. 3 Id. ¶¶ 21–22. After receiving notice of their separations but before
leaving IBM, both Rusis and Gerrits applied for open positions on IBM’s internal hiring
platform, but neither received a response to any application. Id. Named Plaintiff David Ho Eng
was “let go” by IBM on March 31, 2018. Id. ¶ 24. Although a hiring manager sought to hire
Eng after he applied for an open position through IBM’s internal system, Eng ultimately did not
receive the job because his former manager prevented his hiring. Id. Finally, Named Plaintiff
Phil McGonegal was “let go” by IBM on June 30, 2018. Id. ¶ 23.
Before 2014, IBM provided to any employee who had been laid off a list that disclosed
the age and position of all employees within a business unit who had and had not been laid off;
IBM ceased this practice in 2014. Id. ¶ 20. Starting in 2014, however, as part of its separation
agreements with terminated employees, IBM began requiring employees to agree to binding
individual arbitration of any ADEA claims in exchange for a severance payment. Id. Each of
the Named Plaintiffs rejected the separation agreements and therefore did not sign arbitration
agreements. Id.
On March 10, 2020, the Court denied Plaintiff’s’ motion for court-facilitated notice to
potential opt-in members of their proposed ADEA collective. See Rusis v. Int’l Bus. Machs.
Corp., No. 18-CV-8434, 2020 WL 1151322, at *1 (S.D.N.Y. Mar. 10, 2020). The Court held
that, having “made no showing, beyond conjecture and the individual affiants’ beliefs, that a
unifying scheme at IBM links the potential members of the collective to one another despite vast
differences in their jobs, locations, and circumstances surrounding their departure from IBM,”
3
In their briefs, Plaintiffs seem to assume that by alleging that they were “laid off,” the FAC makes clear
that Rusis and Gerrits were both terminated as part of an IBM Resource Action. See Pls. Third Opp. at 6.
4
Plaintiffs failed to meet their burden of tying all former IBM employees over the age of 40,
nationwide, to a common policy or plan executed by IBM. Id. at 6. Despite the Court’s refusal
to facilitate notice to potential opt-ins, more than 100 former IBM employees have now
consented to opt in to this action.
IBM has filed three motions for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). See Dkt. 120; Dkt. 123; Dkt. 129. The first such motion also seeks to
compel to arbitration the subset of opt-ins who signed binding arbitration agreements with IBM
and have not yet arbitrated their ADEA claims. See Dkt. 120.
DISCUSSION
I.
Legal Standards
A. Legal Standard on a Rule 12(c) Motion for Judgment on the Pleadings
“The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical
to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemp. Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001); see also Ashley v. Gonzalez, No. 19-CV-6282,
2020 WL 7027501, at *2 (S.D.N.Y. Nov. 30, 2020) (“The difference between a Rule 12(b)(6)
and Rule 12(c) motions is largely academic because the standard under Rule 12(c) is the same as
the standard under Rule 12(b)(6).” (cleaned up)). The Court must accept as true all material
factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor.
Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009). To survive a Rule 12(c) motion, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. at 44 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To
satisfy the “plausibility” requirement, a complaint must do more than make “[t]hreadbare recitals
of the elements of a cause of action.” Iqbal, 556 U.S. at 678. Rather, the elements of the cause
5
of action must be supported by well-pleaded facts that permit the Court to infer “that the pleader
is entitled to relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
“On a [Rule] 12(c) motion, the court considers the complaint, the answer, any written
documents attached to them, and any matter of which the court can take judicial notice for the
factual background of the case.” L-7 Designs, Inc. v. Old Navy LLC, 647 F.3d 419, 422 (2d Cir.
2011) (cleaned up). “A complaint is [also] deemed to include any written instrument attached to
it as an exhibit, materials incorporated in it by reference, and documents that, although not
incorporated by reference, are ‘integral’ to the complaint.” Id. (quoting Sira v. Morton, 380 F.3d
57, 67 (2d Cir. 2004)). For a document to be “integral” to the complaint, the complaint must
“rel[y] heavily upon its terms and effect.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153
(2d Cir. 2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995)). “[A] plaintiff’s reliance on the terms and effect of a document in drafting the
complaint is a necessary prerequisite to the court’s consideration of the document on a dismissal
motion; mere notice or possession is not enough.” Id. at 153.
Pursuant to Rule 12(d), when a party seeks to introduce matters outside the pleadings in
support of its Rule 12(c) motion, the Court must choose to either exclude those documents from
consideration or convert the motion into one for summary judgment under Rule 56. See Friedl v.
City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (applying principle in the context of a Rule
12(b)(6) motion); Grecco v. Associated Press, No. 16-CV-6240, 2017 WL 2913501, at *3
(S.D.N.Y. July 7, 2017) (applying principle in the context of a Rule 12(c) motion). Here, neither
party has requested that the Court convert the motions to ones for summary judgment, and
minimal, if any, discovery has occurred, rendering it inappropriate to convert IBM’s motions at
this time. See Grecco, 2017 WL 2913501, at *3. The Court, therefore, must exclude any
6
documents — as well as facts and arguments derived from those documents — that are not
properly before the Court on IBM’s motions for judgment on the pleadings.
B. Legal Standard on a Motion to Compel Arbitration
Under the Federal Arbitration Act (“FAA”), a court must compel arbitration in “any suit
or proceeding” if there is “an agreement in writing for such arbitration” and “the issue involved
is . . . referable to arbitration.” 9 U.S.C. § 3. In adjudicating a motion to compel arbitration,
courts must determine “(1) whether the parties agreed to arbitrate; (2) the scope of that
agreement; (3) if federal statutory claims are asserted, . . . whether Congress intended those
claims to be nonarbitrable; and (4) if . . . some, but not all, of the claims in the case are
arbitrable, . . . whether to stay the balance of the proceedings pending arbitration.” Abreu v.
Fairway Mkt. LLC, No. 17-CV-9532, 2018 WL 3579107, at *2 (S.D.N.Y. July 24, 2018)
(internal quotation marks omitted) (quoting Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840,
844 (2d Cir. 1987)). In evaluating a motion to compel arbitration, a district court applies a
“standard similar to that applicable for a motion for summary judgment.” Bensadoun v. JobeRiat, 316 F.3d 171, 175 (2d Cir. 2003). Accordingly, it is “proper (and in fact necessary) to
consider [ ] extrinsic evidence when faced with a motion to compel arbitration.” BS Sun
Shipping Monrovia v. Citgo Petroleum Corp., No. 06-CV-839, 2006 WL 2265041, at *3 n.6
(S.D.N.Y. Aug. 8, 2006) (citing Sphere Drake Ins. Ltd. v. Clarendon Nat’l Ins. Co., 263 F.3d 26,
32–33 (2d Cir. 2001)). In deciding the scope of an arbitration agreement, “due regard must be
given to the federal policy favoring arbitration, and ambiguities as to the scope [must be]
resolved in favor of arbitration.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,
62 (1995).
7
II.
IBM’s Motion for Judgment on the Pleadings as to the “Arbitration Opt-Ins” and to
Compel Arbitration
IBM seeks partial judgment on the pleadings as to all claims pursued by former IBM
employees who signed binding separation agreements with IBM (collectively, the “Arbitration
Opt-Ins”), pursuant to which they agreed to resolve any ADEA claims exclusively through
individual arbitration and waived their right to participate in any class or collective action. See
Def. First Mem. at 1. IBM asks the Court to dismiss with prejudice all opt-ins who have already
arbitrated their claims and to compel to arbitration all opt-ins who have not yet arbitrated their
claims. Id. at 1–2. In response, Plaintiffs do not dispute the existence or effect of the separation
agreements, conceding that the Arbitration Opt-Ins must pursue their claims exclusively through
individual arbitration. See Pls. First Opp. at 1 (“Plaintiffs do not dispute that [the Arbitration
Opt-Ins] must arbitrate their claims.”). Instead, Plaintiffs contend that the Arbitration Opt-Ins
have consented to join this action exclusively to seek a “threshold ruling” from the Court on the
enforceability of a particular provision in IBM’s separation agreements before the Court either
compels to arbitration or dismisses the Arbitration Opt-Ins’ claims. See id. at 3–4, 4 n.8.
Specifically, Plaintiffs seek a Court ruling that the provision in IBM’s separation
agreements setting the deadline for initiating arbitration does not prohibit the Arbitration Opt-Ins
from piggybacking onto Named Plaintiffs’ timely filed Equal Employment Opportunity
Commission (“EEOC”) charges in arbitration, or, to the extent it does, a ruling that this
provision is unenforceable. In other words, Plaintiffs press the Court to rule that the Arbitration
Opt-Ins may “proceed on their [ADEA] claims — in arbitration — pursuant to the ‘piggybacking
rule,’” despite filing arbitration demands after the deadline established in their separation
agreements. Id. at 2. While Plaintiffs want the Court to decide whether the Arbitration Opt-Ins
may avail themselves of the piggybacking doctrine in arbitrating their ADEA claims, the Court
8
need not address that issue at this time. 4 Instead, the Court must respect the valid and
enforceable class and collective action waiver found in each Arbitration Opt-In’s separation
agreement with IBM, which prevents the Court from adjudicating the Arbitration Opt-Ins’ claims
in this putative class and collective action. 5
Pursuant to IBM’s separation agreements, a terminated employee’s deadline for
submitting a demand for arbitration is “no later than the expiration of the statute of limitations . .
4
Although the Court does not reach the issue on which Plaintiffs seek a threshold ruling, because Plaintiffs
raise the possibility of filing individual actions involving the same issue and pursuing consolidation and referral of
those actions to this Court, the Court notes its skepticism of Plaintiffs’ arguments. For starters, Plaintiffs press a
misguided articulation of the issue. The piggybacking doctrine, discussed extensively below, is a judicially-created
exception to the ADEA’s statutory requirement that each individual seeking to litigate ADEA claims in court must
first file a charge of discrimination with the EEOC. Contrary to Plaintiffs’ assertion, the piggybacking doctrine
neither “tolls” the statute of limitations nor is it intended to permit otherwise time-barred claims to proceed in
litigation. See Tolliver v. Xerox Corp., 918 F.2d 1052, 1059 (2d Cir. 1990). Former employees who wished to
pursue ADEA claims in arbitration pursuant to IBM’s separation agreements were not required to file a charge of
discrimination with the EEOC. Plainly, then, the piggybacking doctrine is wholly inapplicable in the arbitration
context. Properly framed, the question is whether the piggybacking doctrine should be considered part of the
“ADEA’s timing scheme” so that IBM’s separation agreements, which require an individual to file an arbitration
demand within the time he or she could have filed his or her own EEOC charge, improperly shorten an individual’s
time to file a discrimination claim. See Pls. First Opp. at 12, 16–17. None of the cases Plaintiffs cite in their brief is
relevant to this issue.
5
While neither party appended to its pleadings an IBM separation agreement, the Court nevertheless
considers IBM’s standard separation agreement to be incorporated by reference into the FAC and IBM’s answer and
otherwise integral to the claims of the Arbitration Opt-Ins whose claims are at issue on this motion. See FAC ¶ 20
(discussing IBM’s separation agreements and the requirement of “binding individual arbitration” contained in the
agreements); Answer at 9, Dkt. 24 (“Any Plaintiff or individual whom Plaintiffs seek to represent who has agreed to
arbitrate some or all of his or her claims against IBM is not entitled to participate in this action, consistent with the
terms of any such arbitration agreement.”); see also Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir.
2000) (“Ordinarily our consideration is limited to the face of the complaint and documents attached to the complaint
or incorporated by reference, but here we may also consult [plaintiff’s] Cardholder Agreement, account history and
monthly statements because they are integral to his claims and [plaintiff] had notice of that information.”); Perry v.
N.Y. Law Sch., No. 03-CV-9221, 2004 WL 1698622, at *2 n.3 (S.D.N.Y. July 28, 2004) (“The arbitration agreement
between the parties is integral to the complaint and the instant motion.”). Further, were it necessary, the Court could
take judicial notice of the materials filed or issued in the Arbitration Opt-Ins’ prior arbitration proceedings. See,
e.g., Cox v. Perfect Bldg. Maint. Corp., No. 16-CV-7474, 2017 WL 3049547, at *3 (S.D.N.Y. July 18, 2017)
(“[C]ourts have regularly taken judicial notice of arbitration awards and collective bargaining agreements in
considering a motion to dismiss or to compel arbitration.”). That Plaintiffs themselves readily cite to these materials
in support of their argument further supports the Court’s position.
In any event, in adjudicating the portion of IBM’s motion seeking to compel arbitration, the Court has
discretion to consider extrinsic evidence; accordingly, there can be no dispute that the Court may consider all these
materials in considering IBM’s motion to compel. See, e.g., Shukla v. Viacom Inc., No. 18-CV-3522, 2019 WL
1932568, at *1 n.2 (S.D.N.Y. May 1, 2019).
9
. that the law prescribes for the claim . . . or, if the claim is one which must first be brought
before a government agency, no later than the deadline for filing such claim.” Declaration of
Craig S. Freedman, Exs. A–SS, Dkt. 122-1–45; Dkt. 136-5. 6 The separation agreements further
provide that “[t]he filing of a charge or complaint with a government agency . . . shall not
substitute for or extend the time for submitting a demand for arbitration.” E.g., Dkt. 136-5. As
is most relevant to the Court’s opinion, IBM’s separation agreements also contain the following
class and collective action waiver:
To the maximum extent permitted by applicable law, you agree that no Covered
Claims may be initiated, maintained, heard or determined on a class action,
collective action or multi-party basis either in court or in arbitration, and that you
are not entitled to serve or participate as a class action member or representative or
collective action member or representative or receive any recovery from a class or
collective action involving any Covered Claims either in court or in arbitration.
Id. In reliance on this provision, IBM argues that the Arbitration Opt-Ins may not seek relief of
any kind in this putative class and collective action. See Def. First Mem. at 11–14; Def. First
Reply at 2–5. 7 The Court agrees.
6
In support of its motion, IBM appended the separation agreement of each of the 45 Arbitration Opt-Ins
whose dismissal it seeks. Plaintiffs attached to its opposition brief a representative sample of IBM’s separation
agreements. Both parties agree that the key terms are the same in each of the relevant IBM separation agreements,
covering each of the Arbitration Opt-Ins. See Def. First Mem. at 2 n.2; Pls. First Opp. at 8.
7
At the time IBM filed its motion, 26 Arbitration Opt-Ins had already pursued their ADEA claims to a final
judgment in individual arbitration; in each proceeding, the arbitrator dismissed the Arbitration Opt-Ins’ ADEA
claims as untimely for failing to submit the arbitration demand within the deadline set in IBM’s separation
agreements. See Def. First Mem. at 4–5; see also, e.g., Dkt 136-6 (representative arbitration order granting IBM’s
motion to dismiss for failure to file a timely arbitration demand). As to each of the Arbitration Opt-Ins who has
already had his or her ADEA claims dismissed as untimely in an individual arbitration proceeding, IBM separately
argues that the doctrine of res judicata precludes relitigation of their claims in this forum and mandates their
dismissal. See Def. First Mem. at 7–10. Alternatively, by expressly invoking the arbitration clause of IBM’s
separation agreements and voluntarily pursuing their claims against IBM to a final decision in arbitration rather than
first challenging the agreements’ enforceability in court, IBM contends that these Arbitration Opt-Ins have waived
their ability to challenge now the validity or enforceability of the separation agreements in this forum. See id. at 9–
10. Plaintiffs oppose each argument. See Pls. First Opp. at 21–23 (arguing the inapplicability of res judicata); id. at
23–25 (arguing against waiver of enforceability arguments by first pursuing claims in arbitration).
Because the Court finds that the valid and enforceable class and collective action waiver prohibits all
Arbitration Opt-Ins from seeking relief of any kind in this case, the Court need not — and, in fact, cannot, while still
10
In seeking a “threshold ruling” on the piggybacking issue, Plaintiffs stress that the
separation agreements provide that the enforceability of the agreements is an exclusive matter for
the courts, and courts commonly decide such threshold issues of enforceability or validity before
compelling the parties to arbitration. See Pls. First Opp. at 2–5. Yet, despite appearing at times
to argue otherwise, Plaintiffs expressly disclaim any attempt “to avoid arbitration or the impact
of the class action waiver.” Id. at 21 n.26 (emphasis added). Thus, unless the Court finds, sua
sponte, that the class and collective action waiver is unenforceable, Plaintiffs seemingly concede
that it must be given effect. In an attempt to avoid this result, however, Plaintiffs argue that,
notwithstanding the class and collective action waiver, principles of judicial efficiency should
persuade the Court to issue a ruling on the piggybacking issue as to the Arbitration Opt-Ins’
separation agreements. Id. at 4–5. This, Plaintiffs contend, would avoid the unnecessary result
of many repetitive individual actions challenging the separation agreements, which, ultimately,
will likely be consolidated and referred to this Court as related to the present action. Id. Finally,
Plaintiffs make a halfhearted attempt to argue that by seeking only a “threshold ruling,” the
Arbitration Opt-Ins’ actions fall outside of the scope of the class and collective action waiver.
Id. at 4 n.8. 8
affording the waiver its operative effect — consider IBM’s arguments concerning res judicata or waiver of the right
to challenge the arbitration agreement.
8
Plaintiffs also argue that, by bringing this motion, IBM seeks to prevent the Arbitration Opt-Ins from
pursuing their claims in any forum. See id. at 1, 11. This argument is patently absurd. Throughout their brief in
opposition to IBM’s motion, Plaintiffs conveniently ignore that the simplest way in which the Arbitration Opt-Ins
could have avoided this entire issue would have been to file timely arbitration demands in the first instance;
Plaintiffs do not identify any obstacle, let alone one imposed by IBM, that prevented the Arbitration Opt-Ins from
filing an arbitration demand on their ADEA claims within the 180- or 300-day deadline established by the separation
agreements. Had the Arbitration Opt-Ins done so, there would be no need to resort to a (far-fetched) argument that
the piggybacking doctrine saves their untimely demands, and they could have received any relief to which they were
entitled in an individual arbitration, as contemplated by IBM’s separation agreements. While IBM plainly seeks to
employ procedural roadblocks to consideration of the merits of the Arbitration Opt-Ins’ ADEA claims, the Court
does not countenance Plaintiffs’ attempts to set the fault at IBM’s feet when they need look no further than their
own counsel for the appropriate locus of blame. See id. at 8 (noting that Plaintiffs’ counsel is responsible for having
11
First, the Court adopts in full the reasoning and holding from a recent opinion issued by a
sister court finding the class and collective action waiver in IBM’s separation agreements to be
valid and enforceable. See Estle v. Int’l Bus. Machs. Corp., No. 19-CV-2729, 2020 WL 5633154
(S.D.N.Y. Sept. 21, 2020). In Estle, plaintiffs sought a declaratory judgment invalidating the
same class and collective action waiver at issue here, arguing that the waiver was not “knowing
and voluntary” under the ADEA and the Older Workers Benefit Protection Act (“OWBPA”).
See id. at *1–2. The Estle court rejected the plaintiffs’ attempt to have it declare the class and
collective action waiver unenforceable, holding that “the right to bring a collective action is not a
substantive right.” See id. at *3–7. Finding Estle to be well-reasoned and thorough, and absent
any argument from Plaintiffs to the contrary, the Court agrees that the class and collective action
waiver in IBM’s separation agreements is fully enforceable.
Plaintiffs’ attempt to remove the Arbitration Opt-Ins’ present maneuver from the scope of
the class and collective action waiver is too cute by half. By signing the separation agreements,
the Arbitration Opt-Ins agreed “that no Covered Claims may be initiated, maintained, heard, or
determined on a class action, collective action, or multi-party basis,” and that they are “not
entitled to serve or participate as a class action member or representative or collective action
member or representative.” Dkt. 136-5 at 25. They further agreed that if they are “included
within any class action or collective action in court or in arbitration involving a Covered Claim,
[they] will take all steps necessary to opt-out of the action or refrain from opting in, as the case
may be.” Id. This clear and unambiguous language plainly covers the situation in which the
Arbitration Opt-Ins now find themselves: pressing their ADEA claims in a putative class and
filed the arbitration demands for the Arbitration Opt-Ins). Moreover, the Arbitration Opt-Ins had no obligation to
pursue relief in this putative class and collective action, in clear contravention of their separation agreements.
12
collective action after having consented to opt in. See, e.g., Dkt. 109-1 at 2 (representative OptIn Consent Form filed by Arbitration Opt-In William Chastka). Even if their true intent in opting
in was only to obtain a threshold ruling on an issue of enforceability, they agreed not to do so.
Moreover, the complaint setting the parameters of this action contains no request for declaratory
relief, nor do any of the Arbitration Opt-Ins’ consent forms delineate the limited purposes for
which they have purportedly opted in. See, e.g., id. Instead, the Arbitration Opt-Ins have placed
themselves in the same position as those opt-ins expressly seeking relief on their ADEA claims.
Neither the broadly worded class and collective action waiver nor the circumstances of the
Arbitration Opt-Ins’ putative participation in this case warrant straying from the clear effect of
the waiver, which prohibits their participation in this action for any and all purposes.
The cases Plaintiffs cite for the proposition that courts often have to decide the validity of
an arbitration agreement or the enforceability of a provision in an agreement before compelling
the parties to arbitration — even when the plaintiffs do not expressly seek any declaratory relief
— are inapposite. Plaintiffs fail to identify a single case in which the court ignored an
enforceable and fully applicable class and collective action waiver to first issue a “threshold
ruling” on the enforceability of the arbitration agreement containing the waiver before
effectuating the waiver’s command. The closest Plaintiffs come is Castellanos v. Raymours
Furniture Co., 291 F. Supp. 3d 294 (E.D.N.Y. 2018), in which the court assessed the
enforceability of a limitations period in the operative arbitration agreement before enforcing the
class action waiver and compelling the plaintiffs to individual arbitration. But in Castellanos,
the court also granted defendant’s motion to strike the class allegations, rendering the case a
multi-plaintiff action, in which it was arguably appropriate for the court to first consider the
enforceability of the arbitration agreement that each named plaintiff had signed before
13
compelling them to individual arbitration. See id. at 298–302. Unlike in Castellanos, here, the
Court may not give credence to the Arbitration Opt-Ins’ class and collective action waiver by
striking the class claims, then decide the common issue of enforceability before compelling
individual arbitration. Instead, this action will continue as a putative class and collective action
regardless of any Court ruling on the arbitration-related issue. In short, there is no way for the
Court to issue any “threshold ruling” while still giving effect to the terms of the Arbitration OptIns’ class and collective action waiver.
Finally, regardless of whether it would be more convenient for the Court to decide the
piggybacking issue at this juncture, the valid class and collective action waiver in the Arbitration
Opt-Ins’ separation agreements must be given effect, and Plaintiffs cite no authority to the
contrary. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619 (2018) (“In the Federal
Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements
according to their terms—including terms providing for individualized proceedings.”);
Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296 (2d Cir. 2013) (“In American Express Co.
v. Italian Colors Restaurant, 570 U.S. 228 (2013), the [Supreme] Court recently reminded lower
courts to ‘rigorously enforce arbitration agreements according to their terms, including terms that
specify with whom [the parties] choose to arbitrate their disputes, and the rules under which that
arbitration will be conducted.’” (quoting id. at 233)). This Court is unaware of any “judicial
convenience” exception to a valid class and collective action waiver and rejects Plaintiffs’
invitation to create one.
Accordingly, IBM’s motion for judgment on the pleadings as to the Arbitration Opt-Ins is
GRANTED. Any former IBM employee who has signed a separation agreement with IBM
containing a class and collective action waiver may not opt in to this action for any purpose,
14
whether to seek declaratory relief concerning the scope or enforceability of their separation
agreement or to seek substantive relief on their ADEA claims. The Court therefore dismisses all
Arbitration Opt-Ins who have already pursued their ADEA claims in individual arbitration; to the
extent these individuals wish to challenge an arbitrator’s final judgment dismissing his or her
ADEA claims and such a challenge is not time-barred, he or she must do so by means of an
individual court action. 9 The Court need not reach IBM’s motion to compel to arbitration those
opt-ins who have not yet arbitrated their ADEA claims. Instead, by granting IBM’s motion for
judgment on the pleadings as to all Arbitration Opt-Ins for the same reason — an enforceable
class and collective action waiver in their separation agreements — like the Arbitration Opt-Ins
who have already arbitrated their claims, the Court simply dismisses those Arbitration Opt-Ins
who have not yet arbitrated their claims, as they are not, under any circumstances, entitled to
participate in this action. 10
9
Although IBM filed motions for partial judgment on the pleadings, the primary relief they seek is dismissal
of individual opt-ins (and two Named Plaintiffs). The Court may grant such relief on a Rule 12(c) motion, as the
distinction between a Rule 12(b)(6) and a Rule 12(c) motion is largely one of timing. See Patel, 259 F.3d at 126
(holding that a motion nominally under Rule 12(b) filed after the close of pleadings should be construed by the
district court as a motion for judgment on the pleadings under Rule 12(c) given that the standard on a Rule 12(c)
motion is the same as on a Rule 12(b)(6) motion); Shapiro v. Merrill Lynch, Pierce, Fenner & Smith Inc., 353 F.
Supp. 264, 268 (S.D.N.Y. 1972) (“However, even though the 12(b)(6) defense is asserted through the procedural
device of a 12(c) motion, the standards employed in determining the motion will be the same as if the defense had
been raised prior to the closing of the pleadings.”), aff’d, 495 F.2d 228, 231 n.2 (2d Cir. 1974); see also Sprint
Telephony PCS, L.P. v. County of San Diego, 311 F. Supp. 2d 898, 903 (S.D. Cal. 2004) (“Because [Rule 12(b)(6)
and Rule 12(c)] motions are analyzed under the same standard, a court considering a motion for judgment on the
pleadings may give leave to amend and may dismiss causes of action rather than grant judgment. The mere fact that
a motion is couched in terms of Rule 12(c) does not prevent the district court from disposing of the motion by
dismissal rather than judgment.” (cleaned up)). Other circuits have explicitly held that, where dismissal is sought
based on an affirmative defense, Rule 12(c) is the procedurally proper means of dismissing a case or claim, not Rule
12(b)(6). See, e.g., Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 n.1 (7th Cir. 2012) (“Though
district courts have granted Rule 12(b)(6) motions on the basis of affirmative defenses and this court has affirmed
those dismissals, we have repeatedly cautioned that the proper heading for such motions is Rule 12(c), since an
affirmative defense is external to the complaint.”).
10
The Court’s decision not to reach IBM’s motion to compel arbitration is bolstered by the fact that the
Arbitration Opt-Ins may be entitled to declaratory relief on the enforceability or validity of the arbitration filing
deadline provision in IBM’s separation agreement prior to arbitrating their claims. Thus, to the extent compelling
them to arbitration may in any way inhibit their ability to obtain that judicial relief in a properly filed, individual
action seeking declaratory judgment, the Court does not seek to improperly erect such a boundary. Nevertheless,
whether seeking preemptive judicial relief in an individual action is procedurally proper is a decision left to the
15
III.
Threshold Issues on IBM’s Motions for Judgment on the Pleadings Concerning the
Scope of the Piggybacking Doctrine
While the Court declines Plaintiffs’ invitation to dive into issues concerning the
piggybacking doctrine on IBM’s motion for judgment on the pleadings as to the Arbitration OptIns, IBM’s other two motions squarely present all manner of piggybacking-related issues before
the Court, many of which are ripe for adjudication. In both motions, IBM pursues the dismissal
of two Named Plaintiffs and certain subsets of opt-ins on account of their failure to satisfy the
ADEA’s administrative exhaustion requirement. While some opt-ins appear to have filed their
own EEOC charges and therefore need not piggyback to exhaust their claims, a significant
number of opt-ins did not file timely EEOC charges. Those Plaintiffs are subject to dismissal for
failure to exhaust unless there is an exhausted claim onto which they can piggyback. As to each
subset of opt-ins who failed to file their own EEOC charges, IBM argues piggybacking is not
available to rescue them from their failure to exhaust their claims. 11
Although the parties largely agree that the overriding purpose of the ADEA’s
administrative exhaustion requirement is to provide the EEOC — and the employer 12 — notice
of the complained-of conduct to permit prompt resolution of the issue through conciliation,
conference, and persuasion, without resorting to litigation, see 29 U.S.C. § 626(d)(2), the parties
sound discretion of whichever district court receives any subsequently filed individual actions, to the extent any are
filed.
11
As addressed below, IBM’s position concerning the two Named Plaintiffs also entails a preliminary
argument that both Eng’s and McGonegal’s own EEOC charges failed to exhaust their ADEA claims, requiring
them to piggyback on another’s timely-filed charge to pursue their ADEA claims in court. For multiple reasons,
IBM then contends that both Eng and McGonegal are unable to avail themselves of the piggybacking doctrine.
12
Plaintiffs seek to frame the operative inquiry in terms of whether “the agency received sufficient notice of
the allegations” in the EEOC charge, minimizing the importance of notice to the employer. See Pls. Second Opp. at
1, 13. As IBM notes, such a framing is in direct contradiction with Plaintiffs’ own authority and this circuit’s wellestablished precedent that emphasizes the importance of both the agency and the employer receiving notice of the
alleged discrimination in an attempt to resolve the issue. See Def. Third Reply at 6 (collecting cases).
16
vehemently dispute whose interpretation of the judicially-created piggybacking doctrine best
accords with that purpose. Plaintiffs contend that IBM’s motions are a naked attempt to elevate
form over substance, employing technical arguments that inappropriately wield the exhaustion
requirement as a means of trimming down Plaintiffs’ case. In contrast, IBM argues that
Plaintiffs’ proffered interpretation of the piggybacking doctrine would essentially vitiate the
ADEA’s administrative exhaustion requirement entirely, with the exception threatening to
swallow the rule. The parties ultimately raise a number of issues concerning the scope of the
piggybacking doctrine that appear to be rarely, if ever, addressed in the context of class and
collective actions, especially in this circuit. Before delving into the multitude of issues
concerning the scope of the piggybacking rule that the parties’ briefs raise, some background on
the relevant principles is in order.
Under the ADEA, “[n]o civil action may be commenced by an individual . . . until 60
days after a charge alleging unlawful discrimination has been filed with the [EEOC].” 29 U.S.C.
§ 626(d)(1). The ADEA further requires that an EEOC charge be filed within 180 days, or 300
days for a deferral state, 13 “after the alleged unlawful practice occurred.” Id. Thus, while a
putative plaintiff is not required to receive authorization to sue from the agency prior to
commencing litigation — unlike in the Title VII context — the ADEA nevertheless sets out a
statutory administrative exhaustion requirement prior to filing suit. See, e.g., Holland v. City of
New York, No. 10-CV-2525, 2011 WL 6306727, at *4 (S.D.N.Y. Dec. 16, 2011). The purpose
13
“A deferral jurisdiction is a state, like New York, that has a law prohibiting age discrimination and an
administrative agency empowered to remedy it. Complainants in deferral jurisdictions cannot bring a civil action
under the ADEA until 60 days after they have filed a charge with the state agency and the EEOC. 29 U.S.C. §§
633(b), 626(d). A complainant in a deferral jurisdiction ordinarily has 300 days to file a charge with the EEOC.”
Brodsky v. City Univ. of N.Y., 56 F.3d 8, 9 (2d Cir. 1995) (footnote omitted). Because Named Plaintiffs and opt-ins
in this action hail from both deferral and non-deferral states, the Court refers to various deadlines as being either 180
or 300 days from the date of the alleged discriminatory conduct.
17
of this requirement is articulated in the statute itself, which provides that, after receiving a
charge, the EEOC “shall promptly notify all persons named in such charge as prospective
defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by
informal methods of conciliation, conference, and persuasion.” 29 U.S.C. § 626(d)(2). Courts
routinely emphasize the remedial purpose of the statute’s administrative exhaustion requirement
in adjudicating claims under the ADEA. See, e.g., Tolliver v. Xerox Corp., 918 F.2d 1052, 1057
(2d Cir. 1990); see also Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 564 (2d Cir. 2006)
(“Holowecki II”) (“[P]roviding the EEOC with an opportunity to eliminate the discriminatory
practice or practices alleged, and to effect voluntary compliance with the requirements of the
ADEA through informal methods of conciliation, conference, and persuasion, is an essential
element of the ADEA’s statutory scheme.” (cleaned up)).
In addition to claims that are expressly alleged, a timely filed EEOC charge also satisfies
the exhaustion requirement for any claims that are “reasonably related” to conduct alleged in the
EEOC charge. See Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1403 (2d Cir.
1993), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1072; see also Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001). Thus,
pursuant to the “reasonably related” doctrine, an EEOC charge exhausts not only those claims
expressly included in the EEOC charge but also all claims based on conduct that would fall
within the scope of the EEOC investigation that can reasonably be expected to grow out of the
EEOC charge. 14 Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008)
14
The Second Circuit has also “recognized two other types of claims that are reasonably related to the claims
asserted in an EEOC complaint: (1) a claim ‘alleging retaliation by an employer against an employee for filing an
EEOC charge,’ and (2) a claim where the plaintiff ‘alleges further incidents of discrimination carried out in precisely
the same manner alleged in the EEOC charge.’” Deravin v. Kerik, 335 F.3d 195, 201 n.3 (2d Cir. 2003) (quoting
Butts, 990 F.2d at 1402–03).
18
(quoting Fitzgerald v. Henderson, 251 F.3d 345, 359–60 (2d Cir. 2001)). As the Second Circuit
has described it, the doctrine is “essentially an allowance of loose pleading and is based on the
recognition that EEOC charges frequently are filled out by employees without the benefit of
counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff
claims he is suffering.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (cleaned up). “In
determining whether claims are reasonably related, the focus should be ‘on the factual
allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which
a plaintiff is grieving.’” Id. (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637
(9th Cir. 2002)).
The single-filing rule, commonly referred to as the piggybacking doctrine, is a judiciallycreated exception to the ADEA’s administrative exhaustion requirement, permitting plaintiffs
who have not filed their own EEOC charges to “piggyback” onto the timely filed charge of
another plaintiff to satisfy the exhaustion requirement. See Holowecki II, 440 F.3d at 564.
Whether a subsequent plaintiff may piggyback on another’s EEOC charge depends on the size
and scope of the “grievances” asserted in the charge. See Tolliver, 918 F.2d at 1057–58. Under
the broadest test, applied by the Second Circuit in most circumstances, “the claims of the
administrative claimant and the subsequent plaintiff [need only] arise out of the same
circumstances and occur within the same general time frame.” Id. at 1057. Under this test, the
subsequent plaintiff must demonstrate only that he was “similarly situated and received the same
discriminatory treatment” as the charge-filing individual. Snell v. Suffolk County, 782 F.2d 1094,
1101 (2d Cir. 1986) (citation omitted). “[W]here the grievances are alleged to arise throughout a
large group,” however, the Second Circuit has imposed an additional requirement that there be
“some indication that the grievance [asserted in the timely filed charge] affects a group of
19
individuals defined broadly enough to include those who seek to piggyback on the claim,” such
that “sufficient notice [has been provided] to the employer to explore conciliation with the
affected group.” Tolliver, 918 F.2d at 1058. While the charge need not “specify that the
claimant purports to represent a class or others similarly situated,” the charge must convince the
court that “no conciliatory purpose would be served by filing separate EEOC charges.” Id. at
1058–59 (quoting Foster v. Gueory, 655 F.2d 1319, 1322 (D.C. Cir. 1981)).
With that background in mind, before addressing IBM’s specific contentions in each of
its motions, the Court must first address a number of threshold issues that bear on the parties’
arguments raised throughout the briefing on both motions. It is firmly established that “the
timely filing of an administrative charge by a named plaintiff in a class action satisfies the charge
filing obligation of all members of the class.” Id. at 1056. Accordingly, in class and collective
actions, disputes concerning the piggybacking doctrine almost always revolve around the
substantive and temporal scope of the charge or charges filed by one or more of the named
plaintiffs — in other words, whether those seeking to join the action faced similar discrimination
in a similar time frame as that alleged in the named plaintiff’s charge and whether the charge’s
asserted grievances were articulated broadly enough to encompass the claims of other class or
collective members. IBM’s motions based on the exhaustion requirement fit neatly within this
framing. Plaintiffs’ opposition, however, seeks to move far beyond that framework, asserting a
number of additional bases pursuant to which the Court should find that the opt-ins that have
consented to participate in this action have satisfied the exhaustion requirement. Unsurprisingly
then, the parties raise a number of issues of first impression in this circuit.
A. The Basis and Scope of the Court’s Analysis
Plaintiffs repeatedly urge this Court to exercise caution in adjudicating IBM’s motions,
claiming that administrative exhaustion is generally not an issue amenable to resolution on a
20
Rule 12 motion given the fact-intensive nature of the inquiry involved. See Pl. Second Opp. at
12; Pl. Third Opp. at 1, 10–11. Yet courts may, and often do, resolve at the motion to dismiss
stage claims of a failure to exhaust where the failure is clear on the face of the complaint. See,
e.g., Gomez v. N.Y.C. Police Dep’t, 191 F. Supp. 3d 293, 299 (S.D.N.Y. 2016) (“[I]f
nonexhaustion is clear from the face of the complaint (and incorporated documents), a motion to
dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted.” (citation omitted));
Collins v. City of New York, 156 F. Supp. 3d 448, 455 & n.4 (S.D.N.Y. 2016) (comparing
plaintiff’s EEOC charge, which the court deemed incorporated by reference and integral to
plaintiff’s complaint, to the complaint to reject argument that claims were reasonably related to
EEOC charge).
Plaintiffs also object to the Court considering documents that IBM has submitted as
exhibits to its motions. See, e.g., Pls. Third Opp. at 6 n.3. IBM, on the other hand, asserts that
the Court must be able to consider certain internal IBM documents, communications with optins, and affidavits submitted by Plaintiffs in connection with other motions in this litigation,
regardless of whether these documents were incorporated into or were integral to the complaint,
because they are critical to determining the timeliness of the opt-ins’ claims and whether a given
opt-in satisfied the exhaustion requirement. See Def. Third Mem. at 5 n.3. Otherwise, IBM
argues, Plaintiffs may evade a meritorious motion for judgment on the pleadings simply by
avoiding referring to certain documents in their complaint or attaching them as exhibits to the
complaint. See Def. Third Reply at 4.
Because of the posture of this case — Rule 12(c) motions for judgment on the pleadings
— the Court is mindful to limit its consideration to facts and documents properly before it at this
juncture. The Court is also cognizant that additional information may come to light in the course
21
of discovery or as matters external to this action unfold and thus seeks to limit its holdings to
propositions of law that will remain unaffected by any subsequent developments.
The Court clearly may consider the EEOC charges filed by Named Plaintiffs: They are
incorporated into the FAC, and Plaintiffs rely on them to satisfy the ADEA’s time limit
requirements. See FAC ¶ 30 (“Several of the Plaintiffs timely filed Class Charges of
Discrimination with the EEOC.”); Holowecki II, 440 F.3d at 565 (“In reviewing the Rule
12(b)(6) ruling, it is proper for this court to consider the plaintiffs[’] relevant filings with the
EEOC . . . , none of which were attached to the complaint, because the Holowecki plaintiffs[]
rely on these documents to satisfy the ADEA’s time limit requirements.”); Muhammad v. N.Y.C.
Transit Auth., 450 F. Supp. 2d 198, 204 (E.D.N.Y. 2006) (“Courts in this Circuit have repeatedly
held that when EEOC charges are expressly referred to in the pleading, they may be considered
incorporated by reference.”). While the EEOC charges filed by certain opt-ins and relied on by
Plaintiffs are neither incorporated by reference into nor integral to the FAC, the Court may still
take judicial notice of documents filed with the EEOC as public records. See, e.g., Muhammad,
450 F. Supp. 2d at 204–05 (“[P]laintiff’s EEOC charge and the agency’s determination are both
public records, of which this Court may take judicial notice.”). For the same reason, the Court
may take judicial notice of the August 2020 EEOC’s Determination Letter, discussed below,
pertaining to an EEOC investigation into IBM’s alleged age discrimination. See, e.g., Frederick
v. Jetblue Airways Corp., No. 14-CV-7238, 2016 WL 1306535, at *5 (E.D.N.Y. Mar. 31, 2016)
(“[C]ourts in this Circuit have routinely taken judicial notice of EEOC determinations without
converting 12(b)(6) motions into summary judgment motions.”); Sternkopf v. White Plains
Hosp., No. 14-CV-4076, 2015 WL 5692183, at *4 (S.D.N.Y. Sept. 25, 2015) (collecting cases).
The Court, however, declines to consider IBM’s affidavits, internal IBM documents,
22
alleged communications with opt-ins, and references to Plaintiffs’ affidavits submitted in
connection with their motion for court-facilitated notice to potential opt-in members of the
ADEA collective, unless it is clear that the document was incorporated into or relied on by
Plaintiffs in drafting the FAC. Compare, e.g., Hewitt v. N.Y.C. Dep’t of Health and Mental
Hygiene, No. 09-CV-5705, 2010 WL 5071996, at *1 n.1 (E.D.N.Y. Dec. 7, 2010) (considering
documents attached to defendants’ motion “for the purpose of determining the timeliness of her
claims” where documents are integral to the complaint), with, e.g., Bethea v. Equinox Fitness
Club, No. 07-CV-2018, 2007 WL 1821103, at *4 (S.D.N.Y. June 21, 2007) (declining to
consider defendants’ affidavit purporting to “set forth the dates of each plaintiff’s employment
with defendants” where “the specific dates of each plaintiff’s employment do not appear on the
face of the Complaint”). To do otherwise would require the Court to convert this motion to one
for summary judgment, which neither party seeks at this time.
In light of the foregoing, the Court will also refrain from applying its rulings to particular
opt-ins, as the only basis on which the Court may determine to whom the holding applies derives
from information submitted by IBM that is not now appropriately before the Court. Following
entry of this opinion, the Court will permit the parties to engage in discovery, if necessary, to
ascertain which opt-ins, if any at this stage, are legally precluded from participating in this
action.
B. Named Plaintiffs David Ho Eng and Phil McGonegal
Each of the four Named Plaintiffs in this action filed his own charge of discrimination
with the EEOC. See Declaration of Alison B. Marshall (“Marshall Decl.”), Exs. A–D, Dkt. 125.
IBM concedes that Named Plaintiffs Rusis and Gerrits each filed a timely EEOC charge that
23
fully exhausted his own ADEA claims (together, the “Rusis/Gerrits charges”). 15 IBM argues,
however, that the EEOC charges of Named Plaintiffs Eng and McGonegal are defective, each for
its own independent reason; accordingly, IBM argues, neither Eng nor McGonegal properly
exhausted his ADEA claims before commencing this action. IBM further contends that, under
Second Circuit precedent, by filing his own EEOC charge, Eng and McGonegal each are barred
from piggybacking on to another’s timely filed charge.
For the reasons stated below, the Court agrees with the general principle that one who
files her own EEOC charge may not thereafter piggyback onto another’s charge to proceed in
court on her ADEA claims. The Court also agrees that Eng’s EEOC charge fails to exhaust his
ADEA claims. Accordingly, the Court finds that IBM is entitled to a dismissal of Eng’s ADEA
claims. As to McGonegal, however, the Court is unable to determine on the face of the
complaint and documents incorporated or integral to it that his EEOC charge was defective and
therefore denies IBM’s motion for judgment on the pleadings as to McGonegal’s ADEA claims.
IBM may, of course, move for summary judgment on a more developed factual record that
would permit the Court to decide whether his charge exhausted his ADEA claims.
1. Whether Piggybacking Is Limited to Individuals Who Did Not File Their
Own EEOC Charge
According to IBM, this matter is a simple one: In Holowecki II, the Second Circuit held
that “[a]n individual who has previously filed an EEOC charge cannot piggyback onto someone
else’s EEOC charge.” Holowecki II, 440 F.3d at 564. The Second Circuit has never qualified
that unequivocal holding to apply only to certain situations, and it is consistent with the holdings
of sister circuits, all of which have held that “where a plaintiff has filed an individual EEOC
15
As discussed below, the Rusis/Gerrits charges are identical with only minor exceptions; as such, the Court
refers to them collectively.
24
charge, such a plaintiff should be required to rely upon his or her own EEOC charge, and cannot
reasonably rely upon [another] claimant’s charge.” Gitlitz v. Compagnie Nationale Air France,
129 F.3d 554, 558 (11th Cir. 1997); see also Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1223–
24 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003). The Court agrees.
Plaintiffs, however, highlight the policy arguments underpinning the Holowecki II court’s
holding and urge this Court not to endorse a per se rule that an individual may never piggyback
on another’s charge if he or she has already filed his or her own charge. Pls. Third Opp. at 15–
19. According to Plaintiffs, the Second Circuit in Holowecki II was concerned solely with
preventing misuse of the piggybacking doctrine to operate as an end-run around the
consequences of an individual failing to timely file suit after receiving a right-to-sue letter. Id. at
16–17. Where those concerns are not present, like here, Plaintiffs argue that the Holowecki II
rule is inapplicable.
While Plaintiffs may be correct about the animating purposes behind the Holowecki II
holding, this Court is unconvinced that the case should be limited to its specific facts. The
Holowecki II court’s holding contains no limiting language, and nowhere does the court seek to
limit its statement that “individuals who have previously filed an EEOC charge cannot
piggyback onto someone else’s EEOC charge” to only certain situations. See Holowecki II, 440
F.3d at 564–65 (cleaned up). While the policy reasons behind the holding may be most
applicable to scenarios involving individuals who seek to avail themselves of the piggybacking
doctrine after neglecting to file suit within the 90-day limitations period, those policy concerns
are similarly applicable to other situations in which an individual who filed his own charge later
seeks to piggyback onto someone else’s charge. Id. at 565 (“[A]llowing an individual who has
25
previously filed a charge to abandon that charge and piggyback onto the charges of another
individual would too often frustrate the EEOC’s statutorily-mandated efforts to resolve an
individual charge through informal conciliation.”). Similarly, the cases on which Holowecki II
relied assert this rule in the broadest possible terms, and the Second Circuit clearly embraced
their broad holdings. See Snell, 782 F.2d at 1100 (stating that “non-filing plaintiffs” can take
advantage of the piggybacking rule (emphasis added)); see also Mooney, 54 F.3d at 1223–24
(“The employee, by failing to assert a particular allegation in his charge, has necessarily
excluded himself from the class of persons purportedly covered by the charge of another.”).
Cases subsequent to Holowecki II also assert the rule in such an unqualified manner. See, e.g.,
Richmond v. Gen. Nutrition Ctrs., Inc., No. 08-CV-3577, 2011 WL 2493527, at *9 (S.D.N.Y.
June 22, 2011) (“[T]he ‘piggyback’ or ‘single filing’ doctrine to which they refer is not available
to individuals who have filed their own EEOC charges.” (citing Holowecki II, 440 F.3d at 564)).
Further, although subsequent cases have dealt primarily with plaintiffs seeking to escape the
consequences of their own failure to sue within the limitations period, Holowecki II has not been
relied on so narrowly within this circuit. See, e.g., Friedman v. Columbia Univ., No. 12-CV9275, 2014 WL 1041032, at *3 (S.D.N.Y. Mar. 13, 2014); E.E.O.C. v. Bloomberg L.P., 967 F.
Supp. 2d 816, 831, 852 (S.D.N.Y. 2013); Johnson v. Locke, No. 10-CV-3105, 2011 WL
1044151, at *10 (S.D.N.Y. Mar. 14, 2011).
Accordingly, the Court finds that “where the party wishing to piggyback has filed his
own EEOC charge, he is bound by the parameters of his own EEOC charge,” and he may not
thereafter piggyback on someone else’s charge. Holowecki II, 440 F.3d at 565 (cleaned up).
Despite the “irony that results from permitting a plaintiff who has not filed an EEOC charge to
‘piggyback’ on another employee’s charge, but . . . denying the ‘piggyback’ option to a plaintiff
26
who has exercised somewhat more diligence by initiating an EEOC charge,” Piasecki v.
Shinseki, No. 10-CV-208A, 2011 WL 2516513, at *3 (W.D.N.Y. June 23, 2011), the Court does
not see any reason to stray from the clear holding articulated in Holowecki II.
2. Named Plaintiff Eng
Named Plaintiff David Ho Eng was terminated from IBM on March 31, 2018. FAC ¶ 24.
On April 26, 2018, Eng dual-filed a charge of discrimination with the EEOC and the California
Department of Fair Employment and Housing. See Eng EEOC Charge, Dkt. 125-3. In his
charge, Eng checked the boxes for race and national origin discrimination but did not check the
box for age discrimination. See id. In the charge particulars, Eng asserted that he believed he
was “discriminated against because of [his] race, Asian, and national origin, Chinese,” in
violation of Title VII. Id. Eng alleged no facts concerning any discrimination based on his age.
Plainly then, Eng’s charge failed to exhaust his ADEA claims, and he may not pursue his
ADEA claims in court based on that charge. See, e.g., Carter v. New Venture Gear, Inc., 310 F.
App’x 454, 458 (2d Cir. 2009) (affirming dismissal of sexual harassment claims where EEOC
charge alleged only racial discrimination); Collins, 156 F. Supp. 3d at 455–56 (dismissing age
discrimination claim where EEOC charge alleged only retaliation for refusing to discriminate
against students with disabilities and “nothing in [plaintiff’s] charge provided the EEOC with
notice of possible age discrimination”). 16 Further, in accordance with the Court’s holding above,
Eng may not now piggyback onto another’s EEOC charge to exhaust his ADEA claims. See
Holowecki II, 440 F.3d at 564. The Court’s confidence in its holding is bolstered by the fact that
16
Although Plaintiffs fail to cite to it, the Court has identified a single case, discussed further below, in which
a court within this circuit has found that a plaintiff’s racial discrimination claim was reasonably related to his EEOC
charge, even though the EEOC charge failed to allege facts describing racial discrimination. See Robinson v. Locke,
No. 11-CV-2480, 2012 WL 1028814, at *4–5 (S.D.N.Y. Mar. 28, 2012). Although the facts in that case resemble
those here in some important respects, ultimately, the Court concludes that Robinson does not support a finding that
Eng’s age discrimination claim is reasonably related to the claims he asserted in his EEOC charge.
27
Plaintiffs fail to cite to any case in which a court has permitted piggybacking in similar
circumstances, i.e., where an individual filed a charge alleging certain claims and thereafter was
permitted to piggyback onto another’s charge asserting different claims. Accordingly, Named
Plaintiff Eng’s ADEA claims are dismissed with prejudice.
3. Named Plaintiff McGonegal
On June 30, 2018, Named Plaintiff Phil McGonegal separated from IBM. FAC ¶ 23.
McGonegal, represented by Plaintiffs’ counsel, filed a charge with the EEOC on July 2, 2018,
via fax. See McGonegal EEOC Charge, Dkt. 136-4. As IBM notes, McGonegal’s EEOC charge
bears “no charge number, file stamp, or any other indication that it was received by the EEOC or
served on IBM.” Marshall Decl. ¶ 5. That is the extent of the information concerning
McGonegal’s separation from IBM and the circumstances surrounding the filing of his EEOC
charge that the Court may consider at this stage.
In their papers, both parties allude to the fact that the EEOC did not receive McGonegal’s
charge when filed by fax on July 2, 2018. See Def. Third Mem. at 5; Pls. Second Opp. at 9.
Both parties also cite to a recent email purportedly from the EEOC to Plaintiffs’ counsel
asserting that the EEOC would process McGonegal’s charge as having been received on July 2,
2018, despite his filing by fax — “not the ideal way” to submit a charge. See Dkt. 125-5. The
Court declines to consider any dispute over the timeliness of McGonegal’s EEOC charge based
on his submission via fax and the EEOC’s alleged lack of contemporaneous receipt. This issue
is not apparent on the face of the complaint, and the only information the Court has before it on
these motions is an email seemingly excerpted from a longer chain and submitted without
context. This document is neither incorporated into nor integral to the FAC, and even if it were,
the Court is unable to determine that “no dispute exists regarding the authenticity or accuracy of
the document.” Sternkopf, 2015 WL 5692183, at *4 (citation omitted). Accordingly, the Court
28
may not dismiss McGonegal’s ADEA claims on these motions based on IBM’s argument that the
claims were not exhausted because EEOC and IBM never received proper notice of his charge. 17
In seeking dismissal of McGonegal’s ADEA claims, IBM also asserts in its motions
additional facts concerning his separation. Specifically, IBM contends that McGonegal was
given the option either to relocate or to participate in IBM’s Transition to Retirement Program;
IBM annexes to its motions several documents that support that contention and that establish the
date on which he was given that choice. See Def. Third Mem. at 5. IBM also provides the
reasons he purportedly gave for opting not to relocate, the date on which he allegedly chose to
participate in the Transition to Retirement program, and information concerning his subsequent,
unsuccessful attempt to seek an exception to the relocation requirement. See id. Based on these
alleged facts, IBM argues that McGonegal’s charge was untimely, regardless of whether the
EEOC accepts his charge as having been received on July 2, 2018, because his claim accrued
well more than 180 days before July 2, 2018. See id. at 15–17.
All of the factual information IBM cites in support of its argument derives either from an
affidavit that McGonegal submitted in support of Plaintiffs’ motion for issuance of notice, see
Dkt. 47-6, or from emails appended to IBM’s motion that McGonegal allegedly sent while he
was still employed at IBM, see Dkt. 131-6. Neither the affidavit nor the emails appear to have
been incorporated by reference into the FAC or integral to it. In their complaint, Plaintiffs allege
17
Even were the Court to consider the circumstances surrounding the filing of McGonegal’s EEOC charge,
assuming that the EEOC decided to accept it as having been received on July 2, 2018 — and considering IBM’s
failure to cite any case law which would suggest the Court should not give credence to the EEOC’s determination —
the Court would not be inclined to find McGonegal’s charge defective on this account. The Second Circuit recently
had occasion to consider a similar issue and recognized that “whether the charge is ‘filed’ on the date that the
plaintiff faxes the complaint to the EEOC or on the date that the EEOC officially stamps the complaint ‘received’ . .
. is an issue of first impression in this Circuit.” Wu v. Good Samaritan Hosp. Med. Ctr., 815 F. App’x 575, 579 (2d
Cir. 2020). The Second Circuit, however, declined to consider the issue as plaintiff’s claims were time-barred under
either formulation. Id. This Court need not consider the issue at this time.
29
that McGonegal “was let go by IBM on June 30, 2018,” and that termination supplies the basis
for his ADEA claims. FAC ¶ 23. While the facts developed during discovery may support
IBM’s contention that McGonegal’s charge accrued well before the date of his actual
termination, nothing on the face of the complaint or in his EEOC charge reveals that the charge
was untimely when filed, even if the Court accepts that it was filed on July 2, 2018.18
Even were the Court willing to consider these documents on IBM’s motions, the Court is
unwilling to delve into a factual inquiry concerning the timing of McGonegal’s claims on a
motion for judgment on the pleadings based on facts selectively chosen by the Defendant that are
not evident from the complaint. The parties’ papers reveal a dispute as to McGonegal’s theory
of discrimination, with IBM contending that his attempt to appeal his selection for IBM’s
relocate-or-retire program has no bearing on when his claim for an alleged constructive
discharge accrued, whereas Plaintiffs allege that McGonegal’s theory of discrimination is more
encompassing than just being forced to choose between relocating and retiring and is mainly
concerned with the fact that his younger colleagues who were also faced with that choice
received exceptions while he did not. 19 See Def. Third Mem. at 15–17; Pls. Third Opp. at 11–15.
18
The cases IBM cites in encouraging the Court to consider documents establishing the date on which
McGonegal decided to separate from IBM are largely unhelpful. See Def. Third Mem. at 5 n.3. For instance, in
Vosburgh v. Burnt Hills - Ballston Lake Cent. Sch. Dist., No. 18-CV-1003, 2019 WL 315054, at *4 (N.D.N.Y. Jan.
24, 2019), the court found that the documents establishing the timeliness of plaintiff’s claims were integral to the
complaint and that plaintiff relied on them in drafting the complaint. IBM has failed to show that the documents it
cites are integral to the complaint or were relied on by Plaintiffs in drafting the complaint. The Court recognizes
that its inability to decide this issue on these motions arises largely from Plaintiffs’ failure to provide any
meaningful detail concerning McGonegal’s separation in the complaint. Nevertheless, the Court is unwilling to
ascribe to Plaintiffs a bad faith attempt to avoid a potentially meritorious Rule 12 motion. The Court warns
Plaintiffs’ counsel, however, that the absence of any detail or context in its filings with the EEOC and this Court
does its clients no favors.
19
Although the facts of McGonegal’s separation are not properly before the Court on these motions, the
Court notes that Plaintiffs’ proffered theory of discrimination as to McGonegal’s separation appears to be different
from that proffered by former IBM employees who were selected for a Resource Action and thereafter sought to
find a different job within IBM. Because the latter theory of discrimination appears on the face of the complaint, the
Court may, and does, consider the parties’ arguments on that issue below.
30
To decide this issue without the benefit of a full record would not be appropriate. See Sec. &
Exch. Comm’n v. Kelly, 817 F. Supp. 2d 340, 343 (S.D.N.Y. 2011) (stating that on Rule 12(c)
motion, proper inquiry is, “[i]f, after accepting the complaint’s factual allegations as true and
drawing all inferences in favor of the plaintiff, it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief[,] the complaint
must be dismissed” (cleaned up)).
In short, based on the information properly before the Court at this time, IBM’s motion
for judgment on the pleadings as to Named Plaintiff McGonegal’s ADEA claims is DENIED.
Upon a more fully developed record, the Court may ultimately find McGonegal’s EEOC charge
to be untimely, but the Court may not reach that conclusion on IBM’s Rule 12(c) motions. 20
C. May Individuals Piggyback onto the EEOC Charge of Someone Other than a
“Named Plaintiff”?
Because IBM’s motions operate on the premise that the EEOC charges of Named
Plaintiffs Eng and McGonegal are defective and therefore do not provide a charge onto which
opt-ins may piggyback, IBM’s memoranda focus exclusively on whether opt-ins may piggyback
onto the Rusis/Gerrits charges, not whether any other EEOC charge supports piggybacking. In
response, Plaintiffs contend that opt-ins may piggyback onto the Rusis/Gerrits charges, but even
if they cannot, there are EEOC charges other than those filed by the Named Plaintiffs that serve
as charges onto which the opt-ins can piggyback. 21 Plaintiffs’ opposition briefs and IBM’s reply
20
Because the Court holds that an individual who filed his own defective EEOC charge may not piggyback
onto another EEOC charge, should the Court later find McGonegal’s charge to be untimely such that it failed to
exhaust his ADEA claims, he will not be able to piggyback onto any other EEOC charge, and his ADEA claims will
be subject to dismissal. Critically, the Court also notes that those opt-ins who hold out hope of piggybacking onto
McGonegal’s charge will not be able to do so if the Court finds it was untimely.
21
As noted, Plaintiffs also oppose IBM’s arguments that the EEOC charges of Named Plaintiffs Eng and
McGonegal are defective — although the Court rejects Plaintiffs’ arguments with respect to Eng — and contend that
opt-ins may also piggyback onto McGonegal’s charge.
31
briefs, 22 therefore, raise the issue of whether an opt-in may piggyback onto the timely EEOC
charge of a former IBM employee who is not a Named Plaintiff in this action — and, perhaps,
not a named plaintiff 23 at all.
According to IBM, non-filing individuals may piggyback only on the administrative
charge of a named plaintiff who has timely filed an EEOC charge and timely filed a lawsuit that
the non-filing individual can join. See Def. Third Reply at 7. IBM seems to further argue that,
“in the context of class and collective actions,” piggybacking is limited to the EEOC charge of
the “named plaintiff representing a collective.” Def. Second Mem. at 10–11. As IBM sees it,
permitting an individual to piggyback onto any EEOC charge regardless of whether the charging
party has initiated litigation which the opt-in may join would inappropriately expand the
piggybacking rule beyond its proper scope and essentially eliminate the administrative
exhaustion requirement from the ADEA. See Def. Third Reply at 7.
Plaintiffs, on the other hand, contend that the piggybacking doctrine, as interpreted by the
Second Circuit, permits non-filing individuals to fulfill their administrative exhaustion
obligations by piggybacking onto any other timely filed charge that alleges similar
discrimination claims against the same employer, regardless of whether the charge-filing party
ever commenced litigation in reliance on his or her charge. See, e.g., Pls. Second Opp. at 3–4, 4
22
The general rule in this circuit is that issues may not be raised for the first time in reply papers. See Rowley
v. City of New York, No. 00-CV-1793, 2005 WL 2429514, at *5 (S.D.N.Y. Sept. 30, 2005) (collecting cases).
Nevertheless, the Second Circuit has held that it is appropriate for courts to consider “arguments raised in response
to arguments made in [a responsive] brief.” United States v. Bari, 599 F.3d 176, 180 n.6 (2d Cir. 2010) (per
curiam). As such, the Court finds it appropriate to consider the issue of whether an opt-in may satisfy the
exhaustion requirement by piggybacking onto the claim of someone other than a Named Plaintiff in the present
action. The Court also finds IBM’s opening briefs to have raised this issue, if not explicitly then at least implicitly,
by arguing that only Named Plaintiffs’ charges may be piggybacked and by arguing that opt-ins who cannot
piggyback onto the charges of the Named Plaintiffs must, therefore, be dismissed.
23
The Court uses the lowercase term “named plaintiff” to refer generally to an individual who commenced a
suit in his or her own name, either individually, in a multi-plaintiff action, or on behalf of a class or collective.
32
n.2. Accordingly, Plaintiffs contend that the opt-ins may piggyback onto any EEOC charge filed
against IBM that provided the agency with notice to investigate age discrimination claims
against IBM within the relevant time frame. See id.
This appears to be an issue of first impression in the Second Circuit. Other circuits,
however, have uniformly found IBM’s position to be correct. As the Fifth Circuit has held, “the
individual who filed the EEOC charge must actually file a suit that the piggybacking plaintiff
may join” in order for a putative plaintiff to piggyback onto that charge. Bettcher v. Brown
Schs., Inc., 262 F.3d 492, 494–95 (5th Cir. 2001) (emphasis added); see also Anderson v. Unisys
Corp., 47 F.3d 302, 308–09 (8th Cir. 1995). In so holding, the Fifth Circuit found that “no
circuit court has ever authorized piggybacking on an EEOC charge when the individual who
filed the charge never actually filed suit.” Id. at 495. Although 20 years have passed since the
decision in Bettcher, this Court is unaware of a single case in the intervening years in which a
court broke from the Bettcher court’s holding, nor do Plaintiffs cite any. 24
Within this circuit, in discussing the piggybacking doctrine, courts speak uniformly in
terms of EEOC charges filed by other “plaintiffs.” For instance, in Snell, the first case in which
the Second Circuit adopted the single-filing rule (in the Title VII context), the court defined the
rule as “where one plaintiff has filed a timely EEOC complaint, other non-filing plaintiffs may
join in the action if their individual claims ‘aris[e] out of similar discriminatory treatment in the
same time frame.’” Snell, 782 F.2d at 1100 (quoting Ezell v. Mobile Hous. Bd., 709 F.2d 1376,
1381 (11th Cir. 1983)); see also Holowecki II, 440 F.3d at 564 (reiterating the Snell articulation
24
The only case within this circuit to address the issue, of which this court is aware, is the district court’s
initial decision in Holowecki, in which the court cited Bettcher for the proposition that “no circuit has ever
authorized piggybacking on an EEOC charge when the individual who filed the charge never actually filed suit.”
See Holowecki v. Fed. Express Corp., No. 02-CV-3355, 2002 WL 31260266, at *5 n.3 (S.D.N.Y. Oct. 9, 2002),
rev’d in part, vacated in part, 440 F.3d 558. The Second Circuit did not consider this issue on appeal. See
Holowecki II, 440 F.3d 558.
33
of the piggybacking doctrine in ADEA case). 25 In each of the cases Plaintiffs cite from this
circuit — including those which Plaintiffs assert support their exceptionally broad reading of the
piggybacking doctrine — the court has employed a similar definition and applied the
piggybacking doctrine only to individuals seeking to piggyback on a named plaintiff’s EEOC
charge. See, e.g., Barrett v. Forest Lab’ys, Inc., 39 F. Supp. 3d 407, 458 (S.D.N.Y. 2014);
Cronas v. Willis Grp. Holdings Ltd., No. 06-CV-15295, 2007 WL 2739769, at *3–5 (S.D.N.Y.
Sept. 17, 2007).
Plaintiffs, however, would have the Court adopt a formulation of the piggybacking rule
that requires only that “a charge notifying the EEOC of the complained[-]of discrimination has
been filed.” Pls. Second Opp. at 16. In pressing for this interpretation, Plaintiffs stress that the
purpose of the administrative exhaustion requirement is “simply to notify the EEOC of the
unlawful discrimination,” and they highlight the supposed breadth of the Second Circuit’s
discussion of the piggybacking doctrine in Tolliver. See id. at 16–17. Pursuant to Tolliver, then,
Plaintiffs argue that “any EEOC charge filed against IBM that provided the agency with notice to
investigate [alleged age discrimination] may be piggybacked on by opt-ins to fulfill the
administrative exhaustion requirement here.” Id. at 4 n.2. This Court is unwilling to go where
seemingly no court has gone before and is unwilling to expand the doctrine that broadly.
Nor is the Court willing to ascribe to Tolliver as broad a reading as Plaintiffs press.
Undoubtedly, the Tolliver court sought to broaden the scope of the piggybacking doctrine within
25
Although there may be some limited differences in the application of the single-filing rule in the context of
claims under the ADEA as compared to Title VII, courts frequently rely on cases arising under Title VII in applying
and analyzing the piggybacking doctrine in ADEA cases, and vice versa. See generally Tolliver, 918 F.2d at 1055–
57; Cronas v. Willis Grp. Holdings Ltd., No. 06-CV-15295, 2007 WL 2739769, at *3–5 (S.D.N.Y. Sept. 17, 2007);
see also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1221 n.10 (11th Cir. 2001) (“The purposes underlying
ADEA and Title VII, specifically their respective requirements that employees file charges of discrimination with
the EEOC so that the employer can attempt to resolve the issue through conciliation, are similar. We therefore look
to Title VII cases as well as ADEA cases in examining [the single-filing rule].”).
34
this circuit. In doing so, the court paid deference to the EEOC’s lenient interpretation of the
ADEA’s charge-filing requirements, pursuant to which those requirements are “satisfied ‘so long
as the matter complained of was within the scope of [a] previously filed charge, regardless of
who filed it.’” Tolliver, 918 F.2d at 1057 (quoting 43 Fed. Reg. 138, 139 (1983)). Describing
the purpose of the administrative charge requirement as “afford[ing] the agency the opportunity
to ‘seek to eliminate any alleged unlawful practice by informal methods of conciliation,
conference, and persuasion,’” the Tolliver court found that “[i]f the agency charged with that task
is satisfied that a timely filed administrative charge affords it sufficient opportunity to discharge
these responsibilities with respect to similar grievances, it serves no administrative purpose to
require the filing of repetitive ADEA charges . . . .” Id. (quoting 29 U.S.C. § 626(d)).
Notwithstanding the breadth of this language, the “primary issue” in Tolliver was
“whether the administrative charges . . . filed by named plaintiffs in a suit instituted as a class
action under the [ADEA] satisfy the claim filing obligations of individual plaintiffs alleging
similar grievances, despite decertification of the class.” Id. at 1054 (emphasis added); see also
id. at 1057 (describing in similar terms the three subsidiary issues the court had to decide). The
Tolliver court focused its inquiry on whether an individual seeking to piggyback on the charge of
a named plaintiff in one action had to join that action or could file his or her own lawsuit while
satisfying the exhaustion requirement by piggybacking on the charge of the named plaintiff in
the other suit. Although Plaintiffs assert that the Second Circuit has aligned itself with the
“‘broadest’ interpretation of the single-filing rule,” Cronas, 2007 WL 2739769, at *6 (quoting
Tolliver, 918 F.2d at 1057), given subsequent case law both within and outside this circuit, the
Court is unconvinced that the scope of the piggybacking doctrine is so broad as to permit an
individual to piggyback on any charge that may have put the EEOC on notice of discriminatory
35
conduct, regardless of whether the charge-filer ever filed suit.
As courts to consider this issue have found, permitting a non-charge-filing individual to
piggyback on “the charge of a party that has not filed suit . . . would allow the single filing
exception to consume the statutory rule, which clearly requires all ADEA plaintiffs to file a
charge before filing a lawsuit.” Bettcher, 262 F.3d at 495. Limiting the charges onto which a
non-charge-filer can piggyback to those filed by named plaintiffs also prevents the unwieldy
scenario in which a court could never be certain whether to dismiss a plaintiff for failing to
exhaust her claims, based on that plaintiff’s assertion that there must surely be a timely EEOC
charge out there somewhere onto which she can piggyback. Properly understood, then, the
single-filing rule requires more than the existence of an EEOC charge, floating somewhere in the
ether, onto which an individual may piggyback — it requires also the existence of a named
plaintiff pressing her ADEA claims in court after having exhausted those claims by virtue of that
EEOC charge. In short, the Court holds that an individual who has failed to file her own timely
administrative charge may piggyback only onto the properly filed charge of an individual who
subsequently commenced a suit in reliance on that charge — i.e., a named plaintiff.
Finally, the Court sees no reason to distinguish between charge-filers who never pursue
litigation in any respect and those who do not commence their own litigation but instead consent
to be bound by another’s action by opting in to a collective. While the Second Circuit permits
individuals to avail themselves of the piggybacking doctrine in their own individual actions
instead of joining the original charge-filer’s existing action, the Court understands there to be an
implicit requirement that there be some existing action which an individual may, although need
not, join. See Tolliver, 918 F.2d at 1057 (addressing the question of “whether the single filing
rule may be used to permit an ADEA plaintiff to file his or her own lawsuit, rather than to join in
36
a previously filed suit, either as co-plaintiff or intervenor”); see also, e.g., Lawrence v. Town of
Irondequoit, 246 F. Supp. 2d 150, 171 (W.D.N.Y. 2002) (“[A] plaintiff who never filed an
EEOC charge may still litigate his or her claim as part of a previously filed law suit so long as
those claims fall within the scope of timely filed charges of the named plaintiffs.”); Clark v.
United Techs. Corp., No. 97-CV-438, 1997 WL 573431, at *3 (D. Conn. Sept. 3, 1997)
(“However, under limited circumstances, plaintiffs who have not [filed a timely EEOC claim]
are permitted to ‘piggyback’ onto the suit of someone else who has filed an administrative charge
alleging class-wide discrimination.” (emphasis added)); Libront v. Columbus McKinnon Corp.,
No. 83-CV-858E, 1987 WL 13879, at *3 (W.D.N.Y. July 13, 1987) (“The intervening plaintiffs
who have not personally complied with section 626(d) are limited to the claims raised by the
representative plaintiffs.”). Even in the case Plaintiffs cite repeatedly for the proposition that the
Second Circuit has adopted the broadest possible interpretation of the doctrine, the court seemed
to consider it an implicit assumption that the charge-filer had filed a suit in her own name. See
Cronas, 2007 WL 2739769, at *3–4 (noting that the single-filing rule has been applied in the
class action context to permit plaintiffs to “‘piggyback’ their otherwise untimely claims on to
those of timely filed named plaintiffs” and otherwise discussing the issue as whether to permit a
plaintiff “to initiate a new lawsuit rather than join a preexisting one”).
Thus, the Court holds that, just as a non-charge filer cannot piggyback onto the charge of
a charge-filer who does not litigate at all, a non-charge filer also cannot piggyback onto the
charge of a charge-filer who seeks to opt-in to a collective. An incidental benefit of this holding
is that it prevents a situation in which plaintiffs in a putative collective action can create a
piggybacking chain of near-infinite length and scope by seeking out new opt-ins who have filed
more recent or broader EEOC charges who can then save others in the action who would
37
otherwise be unable to piggyback onto the charges of the named plaintiffs. 26
D. EEOC Determination Letter
Having found that non-charge filers can only piggyback on to EEOC charges filed by
named plaintiffs, the Court now turns to the primary circumstance in this action implicating such
a finding. On August 31, 2020, after IBM had filed its motions but before Plaintiffs had
responded, the EEOC issued a Letter of Determination (“EEOC Determination Letter”) based on
charges filed by 58 former IBM employees. See EEOC Determination Letter, Dkt. 137-1. The
letter articulates the EEOC’s conclusion that IBM “conducted Resource Actions . . . between
2013 and 2018 that had an adverse impact on employees [40 years of age or older].” Id.
According to the letter, the EEOC’s “investigation uncovered top-down messaging from [IBM’s]
highest ranks directing managers to engage in an aggressive approach to significantly reduce the
headcount of older workers to make room for Early Professional Hires,” with “primarily older
workers (85.85%) in the total potential pool of those considered for layoff.” Id.
As one might expect, Plaintiffs view the EEOC’s Determination Letter as their “golden
ticket.” Plaintiffs repeatedly contend that the letter conclusively demonstrates that the EEOC
was more than simply on notice of rampant age discrimination at IBM, it was actively
26
A subsidiary issue that IBM’s motions appear to raise is whether piggybacking by other named plaintiffs
and opt-ins in a putative class and collective action is limited to the charges of the named plaintiffs in that action or
whether an opt-in plaintiff in one class or collective action may piggyback onto the charges of a named plaintiff in
another action. There is markedly little guidance on this issue, as in nearly every class or collective action invoking
the single-filing rule, the parties agree that the scope of the case is dictated by the EEOC charge or charges of the
named plaintiffs in that action. The Second Circuit in Holowecki II acknowledged this issue but refrained from
addressing it. See Holowecki II, 440 F.3d at 565 (noting the piggybacking plaintiffs’ argument that “they can
piggyback onto timely EEOC charges filed by parties to a separate Florida lawsuit that was dismissed prior to the
initiation of [that action] because the charges filed by those individuals put the EEOC and [the employer] on notice
about its allegedly nationwide discriminatory practices”). Because the Court’s holding that opt-ins may piggyback
only onto the charges of a named plaintiff renders this subsidiary issue irrelevant to these motions, at least for the
time being, it need not address this issue. That said, as a matter of normal litigation practice, the named plaintiffs in
litigation control the scope of the litigation based on the injury they allegedly suffered. It would be odd if
piggybacking could be used to expand the scope of litigation beyond that delineated by the named plaintiffs.
38
investigating it.27 Accordingly, Plaintiffs argue that the EEOC determination letter reveals that
the purpose of the ADEA’s administrative exhaustion requirement has been satisfied, so IBM
cannot reasonably argue that the EEOC has not had an adequate opportunity to investigate and
conciliate the age discrimination claims of the Named Plaintiffs and opt-ins in this case.
Plaintiffs further argue that, to the extent the Court finds that an individual opt-in or group of
opt-ins may not piggyback onto the charges of the Named Plaintiffs in this action, some of the 58
charges underlying the EEOC Determination Letter may provide an additional basis for
piggybacking, and, thus, it would be inappropriate for the Court to dismiss those opt-ins on these
motions, as it is clear from the face of the letter that the underlying charges likely assert the same
theories of broad-based discrimination against IBM within the same time frame as Plaintiffs
allege in this case.
On these motions, the Court does not find the EEOC Determination Letter to be as
helpful to Plaintiffs as they suggest, even if the letter and the investigation it documents may
ultimately assist some opt-ins in exhausting their ADEA claims. First, as the Court addresses
below, it does not find the EEOC Determination Letter to reveal the existence of an investigation
that extends beyond IBM’s Resource Actions. For this reason, the letter provides little assistance
to opt-ins who are pressing constructive discharge or pretextual termination claims and who are
seeking to piggyback into this action.
Second, because the Court has found that non-charge filers can only piggyback onto
named plaintiffs’ charges, Plaintiffs’ argument that the opt-ins in this action may be able to
piggyback on to one of the 58 charges filed by those whose charges underlie the EEOC
27
As discussed below, Plaintiffs also assert that the EEOC Determination Letter supports their argument that
former IBM employees asserting any theory of discrimination — including constructive discharge and pretextual
termination — should be permitted to piggyback, given the alleged breadth of the EEOC’s investigation.
39
Determination Letter would be meritorious only if Plaintiffs could show that at least one of those
58 charge-filing individuals ultimately filed suit. If that occurred, then opt-ins may be able to
piggyback onto that person’s charge. On this record, the Court limits its holding to the general
proposition that those seeking to opt-in may not piggyback onto the charges underlying the
EEOC’s Determination Letter unless the charge-filing individual subsequently commenced
litigation. 28
Nevertheless, at this stage of the case, the Court cannot rule out the possibility that the
EEOC’s investigation into age discrimination at IBM may allow certain opt-ins to demonstrate
exhaustion of their ADEA claims. Courts within this circuit have been willing to apply more
flexibly the reasonably related and piggybacking doctrines in cases in which it is clear that the
EEOC and employer were on notice of alleged discrimination, even if not necessarily alleged in
the EEOC charge on which a plaintiff relied to exhaust his claims. For instance, in Virgo v.
Local Union 580, the court found that a plaintiff’s claims of discrimination, although not
included in his EEOC charge, were “within the scope of the EEOC investigation that reasonably
could be expected to grow out of” the EEOC charge because of an ongoing EEOC investigation
into the employer, such that plaintiff’s claims of discrimination were “not likely to have caught
the EEOC by surprise.” 107 F.R.D. 84, 89 (S.D.N.Y. 1985).
Similarly, in Robinson v. Locke, in issuing a report and recommendation to the district
court, Magistrate Judge Freeman considered whether a plaintiff who filed an EEOC charge
alleging discrimination based on his employer’s use of minor criminal records to screen
applicants and thereafter commenced suit claiming racial discrimination could be deemed to
28
As noted in note 26, the Court refrains from deciding at this time whether the named plaintiff to whose case
an individual opts in must be the same named plaintiff on whose claim that individual piggybacks.
40
have exhausted his race-based claims despite not raising them in his EEOC charge. No. 11-CV2480, 2012 WL 1029112, at *1 (S.D.N.Y. Feb. 1, 2012), report and recommendation adopted,
No. 11-CV-02480, 2012 WL 1028814 (S.D.N.Y. Mar. 28, 2012). Around the same time that
Robinson had filed his EEOC charge, other individuals had commenced a class action suit
against the employer, alleging that it used minor criminal offenses as a means of discriminating
against black and Hispanic individuals. Id. at *8–9. Magistrate Judge Freeman recommended
that, considering the “unusual facts” of the case, despite what would otherwise be a
straightforward application of the principles guiding the exhaustion requirement, the district
court find that the plaintiff’s racial discrimination claims were reasonably related to his EEOC
charge because “both the [employer] and the EEOC could have been expected to consider and
investigate the question of whether Plaintiff may have been adversely impacted by [his
employer’s] screening policy because of his race.” Id. at *7–9. The district court adopted the
report and recommendation on that ground, finding plaintiff’s employer and the EEOC to have
been “sufficiently on notice” to conduct the necessary investigation into plaintiff’s racial
discrimination claims. See Robinson, 2012 WL 1028814, at *4–5.
While the district court did not reach the issue, Magistrate Judge Freeman also
recommended an alternative ground for finding that the plaintiff exhausted his racial
discrimination claims: The court could excuse the exhaustion requirement based on the equities
presented. Robinson, 2012 WL 1029112, at *10; see also id. at *7 (finding that, while the
administrative exhaustion requirement is an essential element of Title VII’s statutory scheme,
federal courts are still empowered to waive the exhaustion requirement where “equity warrants”
(cleaned up)). Magistrate Judge Freeman analogized the situation to that which exists when
courts permit plaintiffs to rely on the piggybacking doctrine to excuse their own failure to file
41
timely charges of discrimination. Id. at *10–11 (citing Snell, Tolliver, and Cronas). Ultimately,
Magistrate Judge Freeman stated, “as in the cases where the single-filing rule has been invoked,
this is a case where both the employ[er] and the EEOC had ample notice of the broad disparateimpact claim that Plaintiff now seeks to raise, and they should have known to investigate that
claim.” Id. at *12. Thus, “the logical underpinnings of the single-filing rule are equally
applicable here, and dictate that Plaintiff should be permitted to proceed with his racediscrimination claim, even though he never mentioned ‘race’ in his administrative filing.” Id.
Given the unusual circumstances in this case as a result of what appears to be a
contemporaneous EEOC investigation into IBM’s alleged age discrimination, this Court may
have reason to more flexibly apply the strictures of the reasonably related and piggybacking
doctrines, or to otherwise excuse an opt-in’s failure to exhaust. At this stage of the case,
however, the Court has far too little information about the EEOC’s investigation to make any
such determination. For that reason, the Court is unwilling to foreclose any individual opt-in’s
participation in this action on these motions inasmuch as subsequent information about the
EEOC’s investigation into IBM may operate to absolve seeming failures to exhaust. 29
IV.
IBM’s Motion for Partial Judgment on the Pleadings as to Constructive Discharge
and Pretextual For-Cause Termination Claims
The Court now turns to the goal of IBM’s second motion: the dismissal of Named
Plaintiffs McGonegal and Eng and all opt-ins who assert constructive discharge and pretextual
for-cause termination claims under the ADEA. As discussed, IBM’s position is that the
Rusis/Gerrits charges — as the only timely charges filed by representative Named Plaintiffs —
29
As discussed below in the context of IBM’s motion pertaining to the substantive scope of the Rusis/Gerrits
charges, however, the Court does not believe that the EEOC’s investigation will permit those asserting constructive
discharge or pretextual termination claims to piggyback or participate as opt-in plaintiffs in this action.
42
are the sole charges onto which any opt-in in this action may piggyback. IBM further contends
that the Rusis/Gerrits charges support piggybacking only for those IBM employees who were
terminated by way of a “layoff.” Accordingly, in IBM’s view, all former IBM employees
asserting ADEA claims pursuant to constructive discharge or pretextual termination theories of
discrimination who did not exhaust their claims through their own timely-filed EEOC charge
must be dismissed from this action.
In opposition to IBM’s motion, Plaintiffs argue that the Rusis/Gerrits charges are
sufficiently broad to permit piggybacking by any former IBM employee asserting any theory of
age discrimination, but even if they are not, there are a number of other EEOC charges onto
which opt-ins asserting constructive discharge and pretextual termination claims may piggyback.
Specifically, Plaintiffs argue that charges underlying the EEOC Determination Letter support
piggybacking for opt-ins asserting claims for constructive discharge and pretextual termination.
See Pls. Second Opp. at 19–20. Plaintiffs also contend that, at the very least, opt-ins asserting
constructive discharge claims may piggyback onto McGonegal’s EEOC charge or the charge of
opt-in Karen Kersting. Id. at 24–25.
For the reasons stated below, the Court finds that the Rusis/Gerrits charges permit
piggybacking only for former IBM employees who were terminated as part of an IBM Resource
Action — i.e., a layoff. As such, should the Court ultimately limit the scope of the ADEA
collective to those who can piggyback onto the Rusis/Gerrits charges (and those who timely filed
their own EEOC charges asserting age discrimination), those opt-ins asserting constructive
discharge and pretextual termination claims who did not file their own timely EEOC charges will
be dismissed from this action. Nevertheless, the Court does not believe that it would be
appropriate to dismiss any individual opt-ins at this stage. First, while the Court agrees with
43
IBM that constructive discharges and pretextual for-cause terminations are factually and legally
distinct from discriminatory layoffs, the Court cannot ascertain on the record before it on this
motion which opt-ins are asserting which theories of discrimination. Thus, while the Court
agrees that an opt-in who, for example, was given the choice between relocating or retiring, or an
opt-in who was nominally terminated for poor performance, may not piggyback onto the
Rusis/Gerrits charges, to determine which opt-ins assert which claim would require the Court to
consider facts and materials that go beyond the scope of those properly considered on a Rule
12(c) motion.
Second, although the Court finds that an individual may only piggyback onto the claim of
a named plaintiff, because Plaintiffs have identified at least the possibility of an EEOC charge
other than the Rusis/Gerrits charges that may permit piggybacking for opt-ins asserting
constructive discharge or pretextual termination claims, the Court agrees with Plaintiffs that it
would be premature to dismiss individual opt-ins on this motion. The possibility remains,
although perhaps remote, that opt-ins may piggyback onto one of the charges underlying the
EEOC Determination Letter or McGonegal’s charge — or the EEOC investigation into IBM will
itself exhaust opt-ins’ ADEA claims. 30
A. Rusis/Gerrits Charges
Named Plaintiffs Rusis and Gerrits filed nearly identical charges almost exactly two
months apart. See Rusis Charge, Dkt. 136-2; Gerrits Charge, Dkt. 136-3. In fact, the charge
particulars are identical, with the sole difference being each man’s age. 31 The Rusis/Gerrits
30
Because opt-ins may not piggyback onto charges filed by non-named plaintiffs, opt-ins asserting
constructive discharge claims may not piggyback onto the charge of opt-in Karen Kersting.
31
This is perhaps unsurprising because Plaintiffs’ counsel appears to have drafted both. The only other
distinction, other than personal identifying information, is the date each provided as the earliest date discrimination
44
charges state, in full:
IBM is discriminating against its older workers, both by laying them off
disproportionately to younger workers and not hiring them for open positions.
Indeed, over the last several years, IBM has been in the process of systematically
laying off its older employees in order to build a younger workforce. IBM has laid
off at least 20,000 employees over the age of forty in the last five years. I am 59
[or 67] years old, and I am being laid off by IBM effective June 27, 2018. Since
receiving notice of my layoff, I have applied for several other open positions within
IBM, for which I am eminently qualified, but I have not been hired for any of these
positions, despite my lengthy service and successful experience as an employee for
IBM. I believe that I and thousands of other employees have been discriminated
against by IBM on the basis of age.
Rusis Charge; Gerrits Charge.
IBM interprets the Rusis/Gerrits charges to encapsulate IBM’s allegedly discriminatory
conduct relating exclusively to “layoffs,” which IBM deems synonymous with its Resource
Actions. Plaintiffs, however, argue that the Rusis/Gerrits charges are sufficiently broad to have
put the EEOC on notice of a multi-year, companywide scheme, so that any opt-in may piggyback
on the charges regardless of the manner in which IBM operationalized its allegedly unlawful age
discrimination as to that specific opt-in. As Plaintiffs view it, any method pursuant to which
IBM achieved its overarching goal of eliminating its older workforce in favor of younger
employees is “reasonably related” to the Rusis/Gerrits charges. Because, in Plaintiffs’ view, any
claim of age discrimination at IBM arises from the same circumstances and occurred in the same
time frame, the Rusis/Gerrits charges provided EEOC notice of the breadth of the allegations.
See, e.g., Pls. Second Opp. at 3–4. The question for the Court, then, is whether, on their face, the
Rusis/Gerrits charges are broad enough to provide notice to the EEOC and IBM to explore
conciliation with employees who separated from IBM in ways other than as part of an IBM
occurred, with Rusis saying March 2018 and Gerrits providing a specific date, March 29, 2018. This information is
relevant only to IBM’s motion concerning the temporal scope of the Rusis/Gerrits charges, discussed below.
45
Resource Action. See Tolliver, 918 F.2d at 1058.
The Court is unpersuaded by Plaintiffs’ argument; it is clear from the face of the
Rusis/Gerrits charges that the scope of the discrimination alleged is limited to IBM’s program of
layoffs or Resource Actions. In determining the scope an administrative charge, the Second
Circuit instructs district courts to focus on the “factual allegations made in the EEOC charge
itself, describing the discriminatory conduct about which a plaintiff is grieving.” Ximines, 516
F.3d at 158 (cleaned up). The Rusis/Gerrits charges speak exclusively of “layoffs” and failure to
hire employees slated for layoff into open positions; there is nothing in the factual allegations
that even remotely suggests a complaint of constructive discharge, pursuant to which an
employee necessarily leaves of her own volition, or of pretextual for-cause termination. This is
true even with respect to the charges’ broadest statements describing IBM’s company-wide
practice of discrimination. See Rusis Charge (“IBM has been in the process of systematically
laying off its older employees in order to build a younger workforce.”). Plaintiffs’ only hope,
therefore, is that the term “layoffs,” and general complaints about discrimination against older
employees, are broad enough to encompass constructive discharge and pretextual termination
claims, such that the EEOC could have been expected to investigate IBM beyond its Resource
Actions. Otherwise, because the charges describe only discriminatory mass layoffs, they do not
administratively exhaust or permit piggybacking for claims based on constructive discharge or
pretextual termination. See, e.g., Holowecki v. Fed. Exp. Corp., 644 F. Supp. 2d 338, 351
(S.D.N.Y. 2008) (“Holowecki III”) (prohibiting piggybacking where individuals’ claims of
discrimination involved different theories and factual settings); Miles v. N.Y. Health & Racquet
Club Found., Inc., No. 84-CV-3610, 1987 WL 9431, at *4 (S.D.N.Y. Apr. 7, 1987) (finding a
claim concerning denial of employee benefits to be “significantly factually different from a claim
46
of discriminatory hiring or of discriminatory sales of memberships,” despite a “commonality of
motivation,” such that piggybacking was not appropriate); see also Ulvin v. Nw. Nat’l Life Ins.
Co., 943 F.2d 862, 865–66 (8th Cir. 1991) (holding that a charge complaining of demotion and
subsequent firing because of age was “too narrow to support the discrimination claims of the
early retirees” who complained of being coerced into accepting early retirement). 32
Plaintiffs argue that the charge allegations — such as “I and thousands of other
employees have been discriminated against by IBM on the basis of age” — “bluntly put the
EEOC on notice as to the breadth of IBM’s unlawful discrimination” so that “[a]ll manners of
age discrimination that led to the separation of employment for older IBM workers fall within
the scope of the conduct alleged in the [Rusis/Gerrits] charges.” Pl. Second Opp. at 1, 3 (quoting
Rusis Charge). The Court is not persuaded. General statements asserting only that IBM engaged
in widespread age discrimination are patently insufficient to put the EEOC or IBM on notice of
future claims alleging constructive discharge or pretextual termination. See Butts, 990 F.2d at
1403 (stating that, with respect to an allegation that plaintiff was “denied promotional
opportunities and consideration based on my race and sex,” “[w]ere we to permit such vague,
general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope
of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such
allegations would become routine boilerplate and Title VII’s investigatory and mediation goals
would be defeated.”); Bloomberg, 967 F. Supp. 2d at 852 n.26 (deeming the statement that
plaintiff “believes that other women in similar situations have also been demoted” insufficient to
32
In arguing that the legal theories underlying reductions in force, constructive discharge, and pretextual
terminations are not actually distinct, especially when plaintiffs allege a “top-down discrimination strategy,”
Plaintiffs cite two cases, one of which considered only whether to issue notice, and the other which the Court has
already deemed unhelpful and reliant on an overly lenient, outdated standard. See Pls. Second Opp. at 23 (citing
Allen v. Marshall Field & Co., 93 F.R.D. 438 (N.D. Ill. 1982), and Heagney v. Eur. Am. Bank, 122 F.R.D. 125
(E.D.N.Y. 1988)). The Court also finds unavailing Plaintiffs’ attempts to distinguish the cases cited above.
47
permit others in putative collective to piggyback). The Court also disagrees that Plaintiffs’
allegation that a single invidious motive underlay various types of employment actions at IBM
means it would have been “inefficient” or unnecessary for opt-ins who experienced adverse
employment actions other than layoffs to have filed a separate EEOC charge. Pl. Second Opp. at
21; see also Miles, 1987 WL 9431, at *4 (looking past “commonality of motivation” despite
different acts of racial discrimination being “analytically linked” where there were significant
factual differences in the type of discriminatory conduct alleged).
The Court agrees with IBM that the term “layoffs” as used here refers exclusively to
IBM’s Resource Actions. As IBM asserts, “layoffs,” both colloquially and in technical legal use,
almost always describe reductions in force, or programs akin to IBM’s Resource Actions, in
which a group of employees are selected in bulk for separation. See Def. Second Mem. at 13–14
(citing Black’s Law Dictionary (10th ed. 2014) (defining “layoff” as a “reduction in force” and
the “termination of employment at the employer’s instigation . . . through no fault of the
employee”)); Def. Second Reply at 1–2 (citing Price v. Bd. of Educ. of Chi., Nos. 11-CV-4463,
11-CV-4974, 11-CV-9322, 2013 WL 1914325, at *6 (N.D. Ill. May 8, 2013); Duffy v. Sarault,
702 F. Supp. 387, 391 n.1, 393 (D.R.I. 1988)). Plaintiffs fail meaningfully to distinguish IBM’s
authority and do not cite any compelling cases of their own. 33 See Pls. Second Opp. at 20–24.
Most fundamentally, however, even under the definition of “layoffs” that Plaintiffs press, it is
clear that the term cannot encompass the multitude of factual scenarios underlying theories of
33
As IBM notes, the cases Plaintiffs cite stand for the proposition that multiple legal causes of action may
arise out of the same set of facts alleged in an administrative charge. See, e.g., Rasmy v. Marriott Int’l, Inc., No. 16CV-4865, 2017 WL 773604, at *7 (S.D.N.Y. Feb. 24, 2017); see also Foster v. Ruhrpumpen, Inc., 365 F.3d 1191,
1199 (10th Cir. 2004). These cases are of no moment here, because the Rusis/Gerrits charges do not include any
factual allegations out of which charges of constructive discharge or pretextual termination could grow.
48
constructive discharge and pretextual terminations. 34 See O’Hara v. Memorial Sloan-Kettering
Cancer Ctr., 27 F. App’x 69, 70 (2d Cir. 2001) (“There must be some factual or legal nexus
between the substance of the allegations contained in the administrative charge and the new
cause of action.”).
As this Court wrote when denying Plaintiffs’ request for the issuance of notice,
discriminatory layoffs, constructive discharges, and pretextual terminations are both legally and
factually distinct, and the Court need not consider the opt-ins’ individual circumstances to reach
this conclusion. See Rusis, 2020 WL 1151322, at *3. Plaintiffs’ own use of the term “layoffs”
and their description of IBM’s alleged conduct adds ample support to the Court’s conclusion.
Plaintiffs readily acknowledge that IBM allegedly employed several distinct methods for
terminating older employees, even if each method was intended to achieve the same top-down
goal of eliminating its older workforce. See, e.g., Pl. Second Opp. at 6 (stating that “IBM
employed several methods to reduce its population of older workers,” then describing Resource
Actions, constructive discharge, and pretextual for-cause terminations as distinct methods).
Plaintiffs’ argument — that determining whether constructive discharge and pretextual
termination claims are factually distinct from IBM’s Resource Actions is an inappropriate factual
determination at this stage of the case — is, therefore, demonstrably false given the way in which
Plaintiffs themselves have described these distinct “methods” of discriminatory terminations in
their pleadings and papers. Similarly, Plaintiffs themselves use the term “layoffs” as
synonymous with reductions in force, or IBM’s Resource Actions, and as distinct from other
34
Even if the Court were to look beyond the factual allegations contained in the Rusis/Gerrits charges
themselves to the facts specific to Rusis’ and Gerrits’ separations from IBM, the Court’s analysis would be the
same. Rusis and Gerrits were each laid off as part of a Resource Action, so any investigation into their specific
circumstances could be expected to extend only to IBM’s Resource Actions.
49
theories of discrimination. See, e.g., FAC ¶ 1 (stating IBM has discriminated against older
employees “both by laying them off (or terminating or constructively discharging them)
disproportionately to younger workers” (emphasis added)); id. ¶ 19 (“Many older employees
have been laid off through reductions in force or layoffs, which IBM refers to as ‘Resource
Actions.’ . . . IBM has also reduced its population of older workers by terminating older
employees for pretextual reasons, or by constructively discharging them . . . .” (emphasis
added)); Pl. Third Opp. at 5 (describing the “several methods” that IBM used to separate older
workers, distinguishing “reductions in force or layoffs” from constructive discharges and
pretextual terminations). 35
The Rusis/Gerrits charges describe, at best, a pattern of discriminatory layoffs targeted at
older employees, and the Court holds that Plaintiffs cannot shoehorn theories of constructive
discharge or pretextual termination into these charges. 36 As the Tolliver court stated, “[i]n
assessing the adequacy of a charge for purposes of the single filing rule, the question is whether
‘it can fairly be said that no conciliatory purpose would be served by filing separate EEOC
charges.’” Tolliver, 918 F.2d at 1058 (quoting Foster, 655 F.2d at 1322). In this case a
conciliatory purpose would have been served by having employees who are asserting
constructive discharge or pretextual termination claims file EEOC charges in addition to those
that were filed by Rusis and Gerrits.
In short, only those opt-ins who were separated from IBM as part of a “layoff” — an
35
In at least one instance, Plaintiffs themselves characterize the Rusis/Gerrits charges as alleging “(in
addition to broader allegations) that IBM systematically laid off its older workforce through strategic [Resource
Actions].” Pls. Second Opp. at 2.
36
The Court notes that the Second Circuit’s description of the reasonably related doctrine as “essentially an
allowance of loose pleading” is “based on the recognition that EEOC charges frequently are filled out by employees
without the benefit of counsel.” Ximines, 516 F.3d at 158 (cleaned up). Here, the Rusis/Gerrits charges were filed
by Plaintiffs’ counsel, so arguments pressing for a lenient interpretation of the charges ring hollow.
50
IBM Resource Action — may piggyback onto the Rusis/Gerrits charges.
B. EEOC Determination Letter
In opposing IBM’s arguments that opt-ins who raise constructive discharge and
pretextual termination claims should be dismissed from this action, Plaintiffs contend that the
EEOC Determination Letter bolsters their argument against dismissal in at least two ways. First,
Plaintiffs argue that the EEOC Determination Letter demonstrates that, over the past several
years, EEOC has conducted a broad investigation of the allegedly wide-ranging age
discrimination scheme carried out by IBM. Thus, Plaintiffs argue, the revelation of IBM’s “topdown messaging” and widespread discriminatory conduct dating back to 2013 supports a finding
that any broadly worded EEOC charge alleging age discrimination by IBM, including the
Rusis/Gerrits charges, permits piggybacking as to any employment action that could be taken to
achieve that goal. Second, and for precisely the same reasons, Plaintiffs contend that the EEOC
Determination Letter reveals that the charges underlying the letter must be broad enough to
permit piggybacking for constructive discharge and pretextual termination claims.
The Court does not find that the EEOC Determination Letter alters its analysis
concerning the Rusis/Gerrits charges in any meaningful way. Contrary to Plaintiffs’ arguments,
it appears clear from the face of the EEOC Determination Letter that the EEOC investigated only
IBM’s Resource Actions, not any other method of age discrimination. The letter plainly states
that the EEOC’s “investigation reveals that [IBM] conducted Resource Actions analyzed by the
EEOC between 2013 and 2018 that had an adverse impact on” older employees and that “it was
primarily older workers (85.85%) in the total potential pool of those considered for layoff.”
EEOC Determination Letter at 2 (emphasis added). Further, IBM’s cited defense in the letter is
that the “Charging Parties were discharged as part of a series of Resource Actions designed to
reduce headcount and decrease costs,” and that IBM “offered various reasons for selection for
51
layoff.” Id. at 1 (emphasis added). That appears to leave little doubt that the EEOC was focused
on IBM’s Resource Actions. 37
Plaintiffs’ attempts read into the EEOC Determination Letter references to or an
investigation of constructive discharges or pretextual terminations are entirely unavailing. There
is nothing about the terms “top-down messaging” or “aggressive approach” that suggests in any
way that the EEOC broadened its investigation to employment actions beyond Resource Actions.
Id. at 2. The appropriate reading of these terms, in the broader context of the EEOC
Determination Letter, is that the EEOC found that IBM’s Resource Actions were guided by
discriminatory “top-down messaging” and an “aggressive approach” to reduce its older
workforce. Plaintiffs also argue that the statement in the letter that “older employees who were
laid off and told that their skills were out of date, only to be brought back as contract workers,”
reveals that the EEOC must have investigated pretextual for-cause terminations. See Pls. Second
Opp. at 19–20 (quoting EEOC Determination Letter at 2). The Court disagrees. It is clear that
“outdated skills” were one of the criteria IBM purportedly used to select employees who were
subject to Resource Actions. See EEOC Determination Letter at 2 (noting that these same
employees were subsequently “brought back as contract workers,” undermining any argument
that these separations involved pretextual for-cause terminations). As Plaintiffs themselves
highlight, Named Plaintiff Rusis was included in an IBM Resource Action “purportedly for not
possessing the required skillset.” Pl. Second Opp. at 8. Finally, Plaintiffs’ assertion that the
EEOC Determination Letter reveals that the EEOC “had ample opportunity to investigate
pretextual for[-]cause termination and constructive discharges” and must have done so is purely
37
Plaintiffs themselves refer to the EEOC Determination Letter as “confirm[ing] Plaintiffs’ theory that IBM’s
[Resource Actions] disproportionately targeted older employees for lay-off.” Pls. Second Opp. at 7.
52
speculative, without any support in the letter itself. Id. at 20. By Plaintiffs’ own estimation,
although the Rusis/Gerrits charges “are not explicitly included in the EEOC’s class-wide
investigation, they assert the exact same theory that the EEOC addressed in its determination.”
Id. at 9. This only reinforces the Court’s finding that neither the Rusis/Gerrits charges nor the
EEOC Determination Letter contain any indication of discriminatory conduct involving
constructive discharges or pretextual for-cause terminations.
The preceding analysis notwithstanding, it would not be appropriate at this stage to hold
as a matter of law that the opt-ins asserting constructive discharge and pretextual termination
claims may not piggyback onto any of the charges underlying the EEOC Determination Letter
based on the fact that the letter, on its face, reveals only an investigation of IBM’s Resource
Actions. 38 Although the Court finds that the letter demonstrates that the EEOC’s investigation
was almost certainly limited to IBM’s Resource Actions, the letter also notes that there are
differences among the underlying charges themselves. See EEOC Determination Letter at 1
(“Individual Charging Parties also alleged discrimination based on national origin, sex, race,
retaliation, and disability.”). Thus, the possibility exists that at least one of the 58 charges
underlying the letter employed language broadly worded enough that it would provide notice to
the EEOC of the class of former IBM employees complaining of constructive discharges and
pretextual terminations, even if the EEOC did not ultimately investigate those claims or at least
did not address them in the letter. Given the Second Circuit’s admonition to rely on the factual
allegations in the charges themselves to determine their scope, it would seem premature to grant
38
As observed supra at pp. 39–40, this presumes that at least one of the 58 former IBM employees whose
charges underlie the EEOC Determination Letter subsequently sued, and, if so, that the Court ultimately finds that
an individual seeking to opt-in to a collective action may piggyback on charges of a named plaintiff who is not a
Named Plaintiffs in this action.
53
Defendant’s motion for judgment on the pleadings as to affected opt-ins without the Court (or
apparently Plaintiffs) ever having seen those charges.
C. McGonegal’s EEOC Charge
Having decided that the Court may not consider the timeliness of McGonegal’s EEOC
charge on these motions, there is an additional issue concerning his charge that the Court is
called upon to consider. McGonegal’s EEOC charge is substantively identical to the
Rusis/Gerrits charges. See Dkt. 136-4. As with the Rusis/Gerrits charges, McGonegal’s charge
speaks exclusively in terms of “layoffs.” Id. Accordingly, it would seem appropriate to construe
McGonegal’s charge in precisely the same manner as the Rusis/Gerrits charges, limiting
piggybacking, to the extent his charge is timely, to those who were separated as part of a
Resource Action. This is the position IBM advances. See Def. Second Reply at 7.
In response, Plaintiffs, relying on the factual allegations concerning the specific
circumstances of McGonegal’s departure from IBM that they contend are not now properly
before the Court, contend that McGonegal’s charge must be read to have put the EEOC on notice
of constructive discharge claims because McGonegal himself was constructively discharged.
Pls. Second Opp. at 24–25. It cannot be said, therefore, that his constructive discharge claim
would not arise in the scope of an EEOC investigation into his allegations. Id. The Court will
not consider those facts at this stage, but it does note that the parties’ arguments raise two
interrelated issues that may require resolution at some point should the Court find McGonegal’s
charge to have been timely filed.
First, “[i]n determining whether a particular claim is reasonably related to the plaintiff’s
EEOC complaint, [courts] look not merely to the four corners of the often inarticulately framed
charge, but take into account the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.” Gomes v. Avco Corp., 964 F.2d 1330,
54
1334 (2d Cir. 1992) (cleaned up). In conducting this assessment, courts must look to whether
“the factual allegations made in the administrative complaint can be fairly read to encompass the
claims ultimately pleaded in a civil action.” Mathirampuzha v. Potter, 548 F.3d 70, 77 (2d Cir.
2008) (cleaned up). It seems, therefore, that the Court’s analysis should focus on the allegations
contained in the text of the administrative charge. This, however, might lead to a nonsensical
result where, for example, an employee alleges in his EEOC charge that he was laid off as part of
a discriminatory reduction in force even though, in fact, he was constructively discharged as part
of a mandatory relocation program. With respect to that individual’s claims of discrimination
raised in an individual action, it would seem relatively uncontroversial for a court to conclude
that his EEOC charge exhausted his own constructive discharge claim; the scope of any EEOC
investigation into his separation would necessarily include an examination of the actual
circumstances of his separation. The real rub, however, lies in the interrelation of the reasonably
related and piggybacking doctrines. Even if a court deems the individual’s constructive
discharge claim reasonably related to the allegations in his EEOC charge, can other employees
piggyback onto that charge, which, on its face, provides no notice to the EEOC or the employer
that its scope includes a group of individuals asserting constructive discharge claims? 39
Ultimately, the Court leaves this issue for another day. Because the Court may not
consider any of the factual circumstances surrounding McGonegal’s termination beyond those
that appear on the face of the complaint, the Court refrains from determining whether opt-ins
asserting constructive discharge can piggyback onto McGonegal’s charge. Similarly, because
39
While not directly on point, the Court is aware of at least one case in which the court found that, even
though a plaintiff’s charge resulted in an agency’s review of alleged discrimination on a class-wide basis, the charge
itself was too individualized to permit piggybacking. See DeBose v. FedEx Corp., No. 08-CV-7042, 2009 WL
1542572, at *2 (S.D.N.Y. June 2, 2009) (striking class claims because plaintiff’s charge would not have put
employer on notice that others suffered similar discrimination even though state agency did ultimately review
employer’s city-wide hiring practices for age discrimination based on the plaintiff’s charge).
55
the Court does not have occasion to determine whether McGonegal’s charge is timely, it need
not decide issues that may never arise in this matter. 40 The Court does note, however, that this
issue arises entirely due to poor lawyering and could have been avoided with a modicum of
effort or attention to detail. McGonegal’s charge was drafted by Plaintiffs’ counsel in this
action. See Dkt. 136-4. Yet, despite the alleged factual differences surrounding the separations
of Rusis and Gerrits on the one hand and McGonegal on the other, counsel opted simply to
repeat the same allegations as in the Rusis/Gerrits charges. In fact, the cover letter submitted to
the EEOC with McGonegal’s charge reveals that counsel failed to replace Gerrits’ name with
McGonegal’s in at least one instance. See id. The reasonably related doctrine exists to assist
employees who submit charges without the benefit of counsel, not to rescue sloppy lawyers.
V.
Motion for Partial Judgment as to Opt-Ins Who Fall Outside the Temporal Scope of
Named Plaintiffs’ Administrative Charges
In addition to the substantive scope of an EEOC charge, the claims of an individual
seeking to piggyback must also have arisen within the same time frame as the conduct alleged in
the charge. See Snell, 782 F.2d at 1100. This “temporal scope” requirement forms the basis of
IBM’s third and final motion for judgment on the pleadings. IBM’s arguments concerning the
temporal scope of the piggybacking doctrine are twofold. IBM’s first argument is that a nonfiling individual may not piggyback onto another’s EEOC charge if she could not have timely
filed her own administrative charge on the date on which the proper charge was filed. IBM
therefore argues that an individual whose claims accrued either (a) 180 or 300 days before the
date on which Rusis filed his EEOC charge or (b) after the date on which Gerrits filed his EEOC
40
It is worth noting that, based on the rest of the Court’s findings on these motions, should the Court find that
McGonegal’s charge was untimely, opt-ins asserting constructive discharge claims are highly unlikely to be able to
piggyback into this action. Those odds are even longer for those alleging pretextual for-cause terminations.
56
charge may not piggyback onto the Rusis/Gerrits charges. 41 IBM’s second argument is based on
its interpretation of the phrase “in the same time frame”; pursuant to IBM’s interpretation, optins whose claims accrued before March 2018 cannot be considered as falling within the same
time frame as the Rusis/Gerrits charges, because those charges provide March 2018 as the
earliest date of discrimination. Similarly, opt-ins whose claims accrued after June 2018 cannot
piggyback because the Rusis/Gerrits charges provide June 2018 as the latest date of
discrimination.
For the following reasons, the Court agrees with IBM’s first argument as to the rearward
temporal scope but disagrees with the argument in the context of the forward temporal scope.
The Court also disagrees with IBM’s second argument concerning the proper interpretation of
the “same time frame” requirement under the single-filing rule. 42
A. Principle that Opt-Ins Must Have Been Able to File a Timely Charge on the Date on
Which the To-Be Piggybacked Charge Was Filed Applies Only in the Rearward
Context
The central issue raised by IBM’s first argument is whether an individual seeking to
piggyback onto a given EEOC charge must have been able to file her own timely EEOC charge
on the filing date of the charge onto which she seeks to piggyback. IBM treats this issue as
largely one and the same in both the rearward and forward scope contexts. In actuality, this rule,
41
While Rusis’ and Gerrits’ charges are substantively identical, they were filed two months apart: Rusis’ in
May 2018, Gerrits’ in July 2018. See Rusis Charge; Gerrits Charge. As such, IBM contends that the date on which
Rusis filed his charge sets the rearward cutoff date for temporal scope purposes, and the date on which Gerrits filed
his charge sets the forward cutoff date for temporal scope purposes. The Court agrees with this formulation as it
pertains to whether an opt-in may piggyback onto the Rusis/Gerrits charges. As discussed, however, this does not,
at this stage, determine whether an opt-in may piggyback into this action, although the Court ultimately may adopt
this formulation to set the scope of the collective.
42
Whether McGonegal’s EEOC charge is ultimately found to support piggybacking for any opt-ins has little
bearing on this piece of IBM’s motions. McGonegal allegedly submitted his charge via fax on July 2, 2018,
seemingly in between the dates on which Rusis and Gerrits filed their respective charges, and the alleged timeframe
of discrimination in his charge is May 2018 through June 30, 2018, which would only extend IBM’s purported
forward cut-off date by three days, were the Court to accept IBM’s argument (which it does not).
57
to the extent it exists, is motivated by different purposes when applied to these two contexts.
IBM’s argument also requires answering two different questions. First, is the rule urged by IBM
a function of the single-filing doctrine itself, such that the principle applies with equal force in
class or collective actions as in individual actions? Second, if not, is the rule a special feature of
the application of the single-filing rule in the class or collective context? The Court finds that
the rule urged by IBM applies in the rearward context as an application of the single-filing rule
itself but, at least in this circuit, does not apply in the forward context.
1. Rearward Scope
While Second Circuit precedent expressly requires only that the claims of an individual
seeking to piggyback arise within the same general time frame as the conduct alleged in the
properly filed charge, there is a separate timing requirement followed by courts both within and
outside this circuit. The parties’ discussion of this rule centers on its articulation in a case out of
the Eleventh Circuit, Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001). In
Hipp, the court limited the beneficiaries of the single-filing rule to those who could have filed
timely EEOC charges on the date on which the representative plaintiff filed his charge. Id. at
1221 (citing Thiessen v. Gen. Elec. Cap. Corp., 996 F. Supp. 1071, 1076–77 (D. Kan. 1998)).
As such, the court held that “the rearward scope of an ADEA opt-in action should be limited to
those plaintiffs who allege discriminatory treatment within 180 or 300 days before the
representative charge is filed,” finding that other courts to address the issue had reached the same
conclusion. Id. at 1220–21.
IBM would have the Court apply the rule articulated in Hipp to the present motion so that
any opt-in who could not have filed a timely EEOC charge on the date on which Rusis filed his
charge, May 10, 2018, may not piggyback onto the Rusis/Gerrits charges. In opposing IBM’s
motion, Plaintiffs argue that the Second Circuit’s adoption of the “broadest” interpretation of the
58
piggybacking rule mandates a more flexible approach, pursuant to which the Court should refrain
from setting a hard-cutoff date before which opt-ins whose claims accrued may not piggyback.
Plaintiffs’ argument misses the mark. The rule articulated in Hipp and otherwise applied by
courts in this circuit is primarily a feature of the ADEA’s statute of limitations rather than an
interpretation of the piggybacking doctrine. The Court therefore agrees with IBM: Opt-ins
whose claims accrued more than 180 or 300 days before May 10, 2018, may not piggyback onto
the Rusis/Gerrits charges. 43
Hipp, as a decision out of the Eleventh Circuit, is not binding on this Court, nor has the
Second Circuit clearly said whether Hipp or some other rule applies in similar situations.
Plaintiffs do not concede that Hipp controls this issue and urge the Court to reject its application.
At the notice stage, however, Plaintiffs argued that the rearward cutoff date for this action should
be 300 days prior to the date on which Rusis filed his EEOC charge, stating that former IBM
employees “would be able to join this case if their employment ended within 300 days of the
filing of that charge,” citing to Hipp. See Pls. Mem. at 2 n.3, Dkt. 47; see also id. at 22 n.36.
Plaintiffs now contend that their citation to Hipp was strictly a matter of convenience, as the
principle from Hipp helps set a manageable cutoff point for a collective. See Pl. Third Opp. at
20 n.16. While their citation to Hipp in the context of the issuance of notice does not now estop
43
The parties seem to agree that May 10, 2018, is the date on which Rusis filed his EEOC charge and that
July 10, 2018, is the date on which Gerrits filed his EEOC charge. As far as the Court can tell this, the date on
which Rusis filed his charge derives from the date of the cover letter Plaintiffs’ counsel submitted with his charge.
See Dkt. 136-2. The date on which Gerrits filed his charge seems to come from a fax “timestamp” in the version of
his charge that IBM appended to its motions. See Dkt. 125-2. There seem to be some minor discrepancies in the
versions of the Gerrits’ charge filed by the parties, however. Compare id. (containing an Agency Charge Number,
Gerrits’ physical signature, and a signature date of July 10, 2018), with Dkt. 136-3 (containing a cover letter bearing
the date July 2, 2018, no Agency Charge Number, Gerrits’ digital signature, and a signature date of July 2, 2018).
The Court will accept May 10, 2018, and July 10, 2018 as the operative filing dates for the Rusis/Gerrits charges at
this time. To the extent there is any subsequent dispute over the date on which either Rusis or Gerrits filed his
charge, such that the precise date determines whether or not a specific opt-in may piggyback, the Court will consider
additional evidence in the record at a later stage of this case.
59
Plaintiffs from arguing that Hipp is inapplicable, the Court finds that their willingness to rely on
the framework articulated in Hipp in that context largely eviscerates their argument that the Hipp
ruling is not in accord with Second Circuit precedent.
Further, the Court finds this rule to be in sync with the Second Circuit’s articulation of
the piggybacking doctrine. In its decisions, the Second Circuit has held that the single-filing rule
does not exist to save the claims of those who otherwise fail to meet the statutory timing
requirements under the ADEA. 44 See, e.g., Levy v. U.S. Gen. Acct. Off., Nos. 97-CV-4016, 97CV-4488, 1998 WL 193191, at *3 (S.D.N.Y. Apr. 22, 1998) (“In Tolliver, the Second Circuit
specifically foreclosed the possibility that the single filing rule could operate to exempt a
plaintiff from the requirement that he file suit in federal court within the limitations period.”).
Although the Tolliver court itself refrained from deciding “whether the single filing rule would
be available to revive the claim of a plaintiff discharged more than 300 days prior to the filing of
the administrative claim on which he seeks to piggyback,” Tolliver, 918 F.2d at 1058 n.3, both
before and after Tolliver, courts within this circuit have applied the same timing rule articulated
in Hipp. 45 For instance, in Barrett, a case on which Plaintiffs rely, the court stated that,
“[a]lthough similarly-situated plaintiffs may ‘piggyback’ off other plaintiffs’ EEOC charges,
44
This is also in accord with the Supreme Court’s general jurisprudence concerning the purposes of
limitations periods for employment discrimination claims. See, e.g., Del. State Coll. v. Ricks, 449 U.S. 250, 256–57
(1980) (“The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly
assert their rights, also protect employers from the burden of defending claims arising from employment decisions
that are long past.”).
45
As discussed in Bowers v. Xerox Corp., Nos. 94-CV-6093T, 94-CV-6261T, 1995 WL 880773, at *3–4
(W.D.N.Y. May 5, 1995), Congress amended the statute of limitations for ADEA claims in 1991, shortly after
Tolliver was decided. Prior to the amendment, the statute of limitations for ADEA claims was two years from the
date of discrimination (or three years for willful violations); the amendment eliminated the "absolute deadline for
filing an action” and set the statute of limitations as 90 days after receipt of a right-to-sue letter. Id. In Tolliver, the
Second Circuit cited the ADEA’s then-absolute statute of limitations as a reason for adopting the single-filing rule,
noting that it would “provide[] adequate assurance that stale claims will not remain viable.” Id. (quoting Tolliver,
918 F.2d at 1059). The Tolliver court thus had less reason to worry about setting a firm rearward cutoff point than
exists today given the elimination of the absolute two-year statute of limitations.
60
individuals may only ‘piggyback’ if they could have filed a timely charge at the time of the
earliest class representative’s charge.” Barrett, 39 F. Supp. 3d at 458. The court therefore held
that “the putative class should be restricted to those individuals employed by Defendants within
300 days (for those in deferral states) or 180 days (for non-deferral states) of the earliest-filed
representative [EEOC charge].” Id. A number of other courts within the Second Circuit have
held similarly in both individual and class or collective contexts. See, e.g., Holowecki III, 644 F.
Supp. 2d at 351 (“Because these three plaintiffs could not have filed a timely charge at the time
of [the representative] charge, i.e., because each of these plaintiffs’ 300 days had already run,
they cannot piggyback onto [the representative] charge. Indeed, if the piggybacking rule were
permitted to allow a time-barred plaintiff’s claim to be revived each and every time a subsequent
plaintiff files a charge, the 300–day cutoff for filing an EEOC charge would be rendered a
nullity.” (internal citation omitted)); Velez v. Novartis Pharm. Corp., 244 F.R.D. 243, 255
(S.D.N.Y. 2007) (“A class representative can only represent those individuals who have either
filed a timely EEOC charge or could have filed one at the time the class representative’s charge
was filed.”); Shapiro v. William Douglas McAdams, Inc., No. 94-CV-4424, 1995 WL 313120, at
*2–3 (E.D.N.Y. May 16, 1995) (“[T]he single filing rule is available only to employees who
could have filed a timely charge on the date the named plaintiffs filed their charge.”); Pandis v.
Sikorsky Aircraft Div. of United Techs. Corp., 431 F. Supp. 793, 798 (D. Conn. 1977) (“Claims
that were time-barred on the date that plaintiff filed his suit cannot be revived by the
commencement of a putative class action. Under Title VII [and the ADEA] a class action
plaintiff cannot represent persons who could not have filed a charge with the EEOC at the time
he filed his charge.”); see also 45C Am. Jur. 2d Job Discrimination § 2145, Westlaw (database
updated Feb. 2021) (“In a class under the Age Discrimination in Employment Act (ADEA), the
61
courts have uniformly limited the ability to opt-in to those persons who may not have, but could
have, filed timely administrative charges, based on the filing date of the charge that forms the
basis for the class action.” (footnotes omitted)). The Court therefore finds that opt-ins whose
claims accrued more than 180 or 300 days before the Rusis EEOC charge was filed may not
piggyback onto that charge.
This holding leaves open the question, disputed by the parties, of the date on which
certain opt-ins’ claims accrued. Plaintiffs argue that their theory of discrimination entails more
than the termination of older employees; it also includes the fact that IBM thereafter refused to
hire these older individuals for open positions, despite their qualifications. See Pls. Third Opp. at
20–21. As such, the date on which an individual’s claim accrued is not necessarily the date on
which she was notified of her separation from IBM; Plaintiffs argue a more fact-intensive inquiry
is required to determine the proper date of accrual of each individual’s ADEA claims. See id.
Plaintiffs further press that such a factual inquiry is wholly inappropriate at this stage, on an
incomplete record. Id. at 21. While IBM recognizes that certain opt-ins’ claims include not only
wrongful termination but also refusal to hire for open positions, it asserts that this is irrelevant to
the question of when those opt-ins’ discriminatory termination claims accrued. See Def. Third
Mem. at 19–20; Def. Third Reply at 5–6. According to IBM, Plaintiffs’ error is conflating
termination and failure to hire claims, a legal error that does not require a factual inquiry to
resolve. The Court agrees. 46
46
The Court notes that it will refrain from wading into any factual disputes concerning the date on which a
specific opt-in’s claims accrued. The Court does, however, consider whether, as a matter of law, Plaintiffs’ theory
of discrimination pled in the FAC can be considered part of a single discriminatory act, such that claims may not
have accrued until after an opt-in had reason to believe that she was not being considered for open IBM positions
because of her age, or whether these are necessarily two separate claims, such that opt-ins’ termination claims
accrued on the date they were notified of their separation, and their refusal to hire claims accrued at some point in
the future. Because the Court finds that only those opt-ins who were separated as part of an IBM Resource Action
may piggyback onto the Rusis/Gerrits charges, the Court’s analysis on this issue is limited to those former IBM
62
In the FAC, Plaintiffs allege that older workers who were “laid off through [IBM’s]
Resource Actions” were prohibited from consideration for other positions through IBM’s
internal hiring platform, and IBM “has used this type of technique to prevent its older workers
who have been laid off from obtaining new positions within the company.” FAC ¶ 25. As pled,
the Court finds that termination and failure to hire claims asserted by those who were selected for
an IBM Resource Action and were thereafter not hired for an open position are necessarily
distinct legal claims and must be treated as such for piggybacking purposes. Courts repeatedly
have found that termination and failure to hire constitute discrete acts, and this conclusion is
unaffected by whether the failure to hire claim is related in some way to the termination claim or
whether the failure to hire stems from the employer’s alleged encouragement of the plaintiff to
apply for new positions after the discriminatory termination. See, e.g., Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002) (describing termination and refusal to hire as
“[d]iscrete acts” which each “constitute[] a separate actionable ‘unlawful employment
practice’”); Bernstein v. N.Y.C. Dep’t of Educ., No. 19-CV-11816, 2020 WL 6564809, at *5
(S.D.N.Y. Nov. 9, 2020) (affirming Morgan’s continuing relevance for the proposition that
termination and refusal to rehire are discrete acts and that if one such discrete act is time barred,
it is not actionable, even if it relates to acts alleged in the timely filed charge); Farnum v. Swiss
Bank Corp., No. 85-CV-157, 1986 WL 1172, at *2 (S.D.N.Y. Jan. 23, 1986) (“[Defendant’s]
refusal to reconsider its decision to terminate [plaintiff] does not magically transform that
isolated incident into an ongoing discriminatory practice. If it did, any Title VII claimant could
revive a time-barred complaint simply by asking the defendant to reconsider an allegedly
employees who were selected for layoff in a Resource Action and applied for open IBM positions in the period
before their separation from IBM became effective.
63
discriminatory decision or action.”); see also Miller v. Int’l Tel. & Tel. Corp., 755 F.2d 20, 25–
26 (2d Cir. 1985) (describing failure to rehire and discriminatory discharge as “separable” and
noting that the more recent failure to rehire claim would not “delay the running of the time
period as to the earlier claim of discriminatory discharge”). Nothing on the face of Plaintiffs’
complaint reveals that an individual’s inclusion in a Resource Action and subsequent inability to
obtain new employment at IBM should not constitute two discrete acts of discrimination, for
which a former IBM employee may assert two distinct claims.
Even if IBM’s alleged “blacklisting of individuals on the Resource Action list from
consideration for . . . internal positions was part of the discriminatory conduct that has been
alleged,” Pl. Third Opp. at 21 n.18, that does not turn discrete acts into a single continuing
violation or combine the discrete occurrences into a single discriminatory act. See Morgan, 536
U.S. at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.”); Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135,
157 (2d Cir. 2012) (“Discrete acts of this sort, which fall outside the limitations period, cannot be
brought within it, even when undertaken pursuant to a general policy that results in other discrete
acts occurring within the limitations period.”); see also Barrett, 39 F. Supp. 3d at 459–60 (citing
Morgan and Chin for the conclusion that, at least in the Second Circuit, the Supreme Court’s
holding in Morgan that the continuing violation doctrine does not apply to discrete acts applies
even in “pattern-or-practice cases,” in which discriminatory acts are undertaken pursuant to a
general discriminatory policy).
As such, the discriminatory termination claims of opt-ins included in a Resource Action
accrued on the date on which the opt-in received notice of inclusion in the Resource Action,
regardless of whether the person sought to be hired to another IBM position after being so
64
notified and even if she did so at the encouragement of IBM management. 47 See Wu v. Good
Samaritan Hosp. Med. Ctr., 815 F. App’x 575, 579 (2d Cir. 2020) (holding that a plaintiff’s
claim for discriminatory termination accrued on the date she “received her notice of
termination,” not on the date of her separation); see also Trenchfield v. Dupont Photomasks, Inc.,
No. 96-CV-1135, 1997 WL 53238, at *6 (S.D.N.Y. Feb. 7, 1997) (“[C]ourts have uniformly
concluded that an unambiguous notice of termination is not made less definitive merely because
it is accompanied by the employer’s hope that the employee might be able to find another
position within the company.”); Cole v. CBS, Inc., 634 F. Supp. 1558, 1562 (S.D.N.Y. 1986)
(“The fact that CBS held out the hope that [plaintiff] might be able to obtain other employment
at CBS did not in any way detract from the unequivocal nature of his termination from that
position.”). 48 On the other hand, opt-ins’ claims for failure to hire based on IBM’s refusal to
consider them for internal positions after their inclusion in a Resource Action accrued when they
had reason to know that they had not been hired to an open IBM position for which they applied.
See, e.g., Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *6 (S.D.N.Y.
Mar. 26, 2014) (holding that a plaintiff’s failure to hire claim “accrued when Plaintiff was
47
To the extent there is a factual dispute concerning the date on which an opt-in received notice sufficient to
inform her that she would be included in a Resource Action, discovery may be necessary to shed light on that issue.
The Court notes, however, that Plaintiffs’ assertion that employees could not have known that their inclusion in a
Resource Action was motivated by discrimination until after they were blocked from other IBM positions is in direct
conflict with established precedent. See, e.g., Lugo-Young v. Courier Network, Inc., No. 10-CV-3197, 2012 WL
847381, at *5 (E.D.N.Y. Mar. 13, 2012) (“[A]n employee has notice of his injury on the date that the employer has
clearly communicated to the employee its decision to terminate him. It is not a prerequisite to accrual that an
employee have information necessary to decide whether the injury is due to . . . wrongdoing by the defendant.”
(cleaned up)). In all events, the Court’s holding can be applied easily to those opt-ins who separated from IBM
more than 180 or 300 days before the date on which the Rusis charge was filed; those former employees may not
piggyback their termination or failure to hire claims onto the Rusis/Gerrits charges.
48
Plaintiffs argue that IBM’s reliance on cases like Trenchfield and Cole is unavailing because, unlike in
those cases, IBM’s discriminatory conduct included blacklisting employees on the Resource Action list from
consideration for open positions. As demonstrated in cases like Chin and others cited above, however, Plaintiffs’
argument is itself unavailing and fails to distinguish meaningfully IBM’s cited authority. That IBM’s discrimination
extended to refusing to hire terminated older employees into open positions does not change whether the termination
and the refusal to hire were discrete acts of discrimination, each subject to its own limitations period.
65
informed or had reason to know of the failure to hire”).
In short, opt-ins asserting termination claims that accrued more than 180 or 300 days
before the Rusis/Gerrits charges were filed may not piggyback their termination claims onto
those charges; opt-ins asserting failure to hire claims (in addition to termination claims) that
accrued more than 180 or 300 days before the Rusis/Gerrits charges were filed may not
piggyback their failure to hire claims onto those charges. 49
2. Forward Scope
Having determined that, in the rearward context, to piggyback on an EEOC charge, an
opt-in must have been able to file her own timely charge on the date on which the to-be
piggybacked charge was filed, the Court must determine whether that same principle determines
the forward cutoff date for piggybacking purposes. The Court concludes that it does not; an
individual may piggyback onto another’s EEOC charge even if her claims accrued after the date
on which the charge was filed. This, however, does not resolve the inquiry; the Court must also
determine whether, even though this is not a limiting principle on the single-filing rule in this
circuit, it exists as the operative cutoff point for piggybacking in class or collective actions. Put
differently, is the forward scope of an opt-in class determined by the date on which the last
representative charge was filed? The Court is unwilling to endorse that as a per se rule on these
motions.
As with the rearward scope of the piggybacking doctrine, the Second Circuit does not
49
Plaintiffs’ argument that IBM’s formulation, largely adopted by the Court, defies common sense is
unconvincing. In essence, Plaintiffs argue that it would be illogical or unreasonable to require an IBM employee to
file an EEOC charge after having received notice of inclusion in a Resource Action while she was applying to other
positions at IBM before her separation became effective. See Pls. Third Opp. at 20 n.17. Yet, as pled in the FAC
and based on the date he filed his EEOC charge, that is precisely what Rusis did. See FAC ¶ 21 (alleging Rusis
received notice in March 2018 of his inclusion in Resource Action and his separation became effective June 27,
2018); Rusis Charge (filing date of May 10, 2018). Plaintiffs’ argument that Rusis failed to obtain another position
is entirely irrelevant to whether it was unreasonable for him to file an EEOC charge while seeking another IBM job.
66
appear to have spoken with a clear voice as to the proper principle dictating the forward scope of
the doctrine, especially in the context of class and collective actions. In fact, this issue appears to
be far less probed by courts within this circuit than its backward-facing counterpart. Neither
party cites to any cases within this circuit to support their arguments about the forward scope of
the piggybacking doctrine, whether in individual or collective actions.
As discussed, in the context of the rearward-facing scope of the piggybacking doctrine,
courts within this circuit have routinely held that “the single filing rule is available only to
employees who could have filed a timely charge on the date the named plaintiffs filed their
charge.” Shapiro, 1995 WL 313120, at *2. Having adopted that principle in the context of the
rearward scope of the piggybacking doctrine, there would seem to be some justification for the
Court to apply it in the forward-facing context as well. A straightforward application of that rule
would dictate that an individual whose ADEA claims had not yet accrued when the
representative charge was filed could not have filed a timely charge on that date and therefore
cannot piggyback onto that charge. The application of this principle in the rearward context,
however, is primarily a function of the ADEA’s statute of limitations, in that the single-filing
rule cannot be used to save the claims of those who failed to file a charge of discrimination
within the required 180 or 300 days after the discriminatory conduct. See, e.g., Holowecki III,
644 F. Supp. 2d at 351. That principle has significantly less weight applied in the context of
claims that accrued after the representative charge was filed.
In opposing IBM’s attempt to set the forward scope of an opt-in class as the date on
which the last named plaintiff filed his EEOC charge, Plaintiffs argue — as they did in the
rearward-facing context — that IBM seeks to impose a bright-line rule that conflicts with the
Second Circuit’s edict in Tolliver, which requires only that “the claims of an individual seeking
67
to piggyback arise ‘within the same general time frame’ of the original charge.” Pls. Third Opp.
at 24 (quoting Tolliver, 918 F.2d at 1057). Plaintiffs, therefore, contend that “clearly ongoing
discrimination . . . of the same nature complained of in the original charge” is exhausted by the
original charge for piggybacking purposes. Id. Seemingly seeking to avoid limiting themselves
to the operative framework of ADEA class and collective actions, Plaintiffs’ argument is framed
more generally about the scope of the piggybacking doctrine itself and less about the scope of an
opt-in class in which opt-ins seek to piggyback on a named plaintiff’s representative charge.
Although Plaintiffs do not explicitly argue in these terms or cite to any case articulating
the proposition, their argument appears to implicate an element of the Second Circuit’s
“reasonably related” doctrine. In Almendral v. N.Y. State Office of Mental Health, the Second
Circuit found that, where “defendants’ alleged subsequent acts [were] essentially the same as the
earlier allegedly wrongful conduct contained in the EEOC complaint,” and where the EEOC
charge “plainly stated that the acts of discrimination were on a ‘continuing’ basis,” the
“subsequent acts were ‘reasonably related’ or could ‘reasonably [have been] expected to grow
out of the [EEOC] charge of discrimination,’” and it was therefore error for the district court to
refuse to consider allegations that occurred after the plaintiff had filed her EEOC charge. 743
F.2d 963, 967 (2d Cir. 1984). The Second Circuit subsequently classified this concept of
“discrimination carried out in precisely the same manner alleged in the EEOC charge” as one of
three situations in which claims not alleged in the EEOC charge can be deemed “sufficiently
related to the allegations in the charge that it would be unfair to civil rights plaintiffs to bar such
claims in a civil action.” Butts, 990 F.2d at 1402–03 (citing Almendral, 743 F.2d at 967).
While courts frequently apply this aspect of the reasonably related doctrine in the context
of a single plaintiff’s claims of discrimination to permit that plaintiff to press claims that arose
68
after the charge was filed, few courts in this circuit appear to have applied this concept in the
context of the single-filing rule. The limited few that have, however, have permitted
piggybacking for plaintiffs asserting claims that accrued after the date the other’s charge was
filed. For instance, in Cronas, the court advocated for a more lenient interpretation of the “same
time frame” requirement, noting that “the very nature of piggybacking necessarily means that the
plaintiff is bringing suit at a later date, and therefore, that the discriminatory conduct alleged in
the suit was not limited to the time frame in the original charge.” 50 See Cronas, 2007 WL
2739769, at *8. In Barrett, the court permitted three named plaintiffs to piggyback onto the
charge of another named plaintiff despite the fact that the claims of the non-filing plaintiffs
accrued one to two years after the claims of the charge-filing plaintiff — and at some point after
the charge itself was filed. 51 Barrett, 39 F. Supp. 3d at 454. Citing to Cronas, the court found
that the Second Circuit has “adopted a relaxed view of the requirements that events occurred
within the same time period,” and noted that “[e]xact duplication of a time frame is unnecessary
to satisfy the single-filing rule; instead, mere similarity of grievances within the same general
time frame suffices to permit the operation of the single filing rule.” Id. (quoting Cronas, 2007
WL 2739769, at *8); see also EEOC v. Mavis Disc. Tire, No. 12-CV-741, 2013 WL 5434155, at
50
While Cronas demonstrates a court’s willingness to permit piggybacking even for claims arising after a
another’s charge was filed, Cronas otherwise provides little guidance on this issue. In Cronas, a “pattern and
practice discrimination” case, the court examined a plaintiff’s claims that a manager sexually harassed her and other
female employees. See Cronas, 2007 WL 2739769, at *8. Invoking Almendral, the Cronas court found that “the
proper inquiry is not whether [plaintiff’s] claims occurred in the same time frame as those in the [representative]
charge, but whether [plaintiff’s] claims plainly state that the acts of discrimination were on a continuing basis in
such a way as those acts could reasonably [have been] expected to grow out of the [representative] charge.” Id.
(cleaned up). Plainly, then, Almendral has significantly more currency in the context of continuing pattern and
practice discrimination cases than in those alleging discrete acts of discrimination, such as terminations. See id.
(“[E]xact temporal similarity in pattern and practice discrimination claims is impractical, as the discriminatory
conduct alleged in such claims is not a discrete, isolated event.”).
51
See No. 12-CV-5224, Dkt. 28-10 (representative charge filed February 2011); Barrett, 39 F. Supp. 3d at
454 (noting that piggybacking plaintiffs complained of retaliation in 2011 and 2012).
69
*3–4 (S.D.N.Y. Sept. 30, 2013) (permitting two plaintiffs to piggyback on the third plaintiff’s
EEOC charge because their claims all arose “out of similar discriminatory treatment in the same
time frame” (cleaned up)). 52
Accordingly, while perhaps uncommon and primarily arising in the context of pattern and
practice cases, courts within this circuit do not appear to have limited the availability of the
single-filing rule to those asserting claims that accrued before the date on which the to-be
piggybacked charge was filed. The Court agrees with Plaintiffs, then, that, as applied in the
Second Circuit, the piggybacking doctrine is not limited to claims that accrued before the filing
date of the relevant charge.
Nevertheless, a secondary inquiry requires the Court to determine whether, in this circuit,
the forward cutoff date for a piggybacking opt-in class must be set as the date on which the
named plaintiff’s charge was filed. At least one or two other circuits to consider this issue have
determined that to be the case. In Hipp, the Eleventh Circuit held that “[t]he forward scope of an
opt-in class ends on the date the representative charge is filed.” Hipp, 252 F.3d at 1225. The
Hipp court noted that “[a] single charge cannot be expected to put the EEOC and employer on
notice that general policies as applied to different individuals in different offices are being
challenged indefinitely.” Id. at 1226. The Fifth Circuit appears to follow a similar rule. See
Anson v. Univ. of Tex. Health Sci. Ctr. at Hous., 962 F.2d 539, 543 (5th Cir. 1992) (“We hold
simply that a district court does not err in denying intervention to one whose claim had not yet
arisen at the time of the filing by another of an administrative charge which alleges only past
52
Interestingly, outside this circuit, courts appear to have limited Almendral and its holding to cases involving
a single plaintiff alleging continuing discrimination. The Fifth Circuit, for instance, distinguished Almendral in the
context of the single-filing rule because Almendral was concerned with whether “further claims from a particular
plaintiff” could be considered included within that plaintiff’s charge, “not the addition of further plaintiffs.” Anson
v. Univ. of Tex. Health Sci. Ctr. at Hous., 962 F.2d 539, 543 (5th Cir. 1992) (emphasis added).
70
personal complaints regarding one who employs as many as 2,500 people.”); see also 45C Am.
Jur. 2d Job Discrimination § 2145 (“[T]he forward scope of an opt-in class ends on the date
when the representative charge is filed.”).
Whereas the Hipp court’s decision to set the rearward scope of an ADEA opt-in
collective as 180 or 300 days before the representative charge was filed was animated by statute
of limitations principles, the Eleventh Circuit’s decision with respect to the forward scope of an
opt-in collective was not. See Hipp, 252 F.3d at 1220 (noting that the concern in the rearward
context was “that plaintiffs would be able to revive stale claims for which they failed to file
EEOC charges”). The Eleventh Circuit’s setting of the forward scope as the date on which the
representative charge was filed was a product of its interpretation of the policies behind the
exhaustion requirement and the piggybacking doctrine. See id. at 1225. As the Hipp court
viewed it, it is not “‘useless’ for plaintiffs with claims arising after the representative charge is
filed to file their own charges.” Id. The court dismissed the plaintiffs’ arguments that
subsequent claims were either related to or grew out of the allegations in the representative
charge, finding distinguishable the plaintiffs’ authority because it did not “establish that one
plaintiff may opt into an action because his claims of discrimination relate to allegations made in
an EEOC charge filed by another plaintiff.” Id. at 1226. As discussed above, however, in the
Second Circuit, courts have permitted piggybacking where the subsequent plaintiff’s claims
accrued after the date on which the representative charge was filed. Further, the Hipp court
noted that “[w]here the representative charge clearly alleges a continuing, concrete policy that is
illegal, . . . it might be fair to assume the company has knowledge of later-arising claims
challenging the same policy”; in other words, “[w]hen plaintiffs so clearly meet the ‘similar
discriminatory treatment’ requirement, . . . courts can afford to be somewhat more lenient with
71
respect to the ‘in the same time frame’ requirement, without sacrificing fairness to the
employer.” Id. at 1226 & n.22.
In light of the above, the Court is unwilling to adopt a per se rule which sets the forward
cutoff date of an ADEA opt-in collective as the date on which the representative charge was
filed. 53 The Court is especially hesitant to do so in this case in view of the EEOC Determination
Letter and the investigation it documents. To the extent the EEOC was investigating IBM’s
Resource Actions in the period post-dating the filing of the Rusis/Gerrits charges, there may
have been little reason to require those separated as part of a Resource Action subsequent to July
2018 to file their own EEOC charge. See Tolliver, 918 F.2d at 1058 (asking whether “no
conciliatory purpose would be served by filing separate EEOC charges” (cleaned up)). Although
Hipp may be correct that, in most situations, where it is far less likely that the agency or the
employer would be on notice of continuing discrimination of the same type as alleged in the
representative charge, the filing of subsequent administrative charges would be anything but
futile, that is not universally true, and this case may be that rare exception contemplated in Hipp.
In short, the Court is unwilling at this stage to prohibit opt-ins whose claims accrued after
July 10, 2018, from piggybacking onto the Rusis/Gerrits charges or otherwise participating in a
collective. Based on the information that comes out during discovery about the EEOC’s
investigation and other relevant information, the Court may still choose to set the forward cutoff
date of any opt-in collective as the date on which Gerrits filed his EEOC charge; at this juncture,
however, it is premature to determine whether that would be appropriate. 54
53
A simple hypothetical illustrates the point. Assume IBM gave notice to 100 employees over the age of 40
of their inclusion in a Resource Action on July 11, 2018, one day after Gerrits filed his EEOC charge. There is no
reading of Tolliver or subsequent precedent within this circuit that would support precluding those 100 individuals
from piggybacking on the Gerrits charge, as a matter of law.
54
Opt-ins may not piggyback on the charges of opt-ins Brian Haupt and Phil Monson because neither is a
named plaintiff. Even were the Court to consider them, it has significant concerns about the propriety of permitting
72
B. The Earliest and Latest Dates of Discrimination Listed on the Rusis/Gerrits Charges
Do Not Set a Rearward or Forward Cutoff Date for Piggybacking Purposes
The Court next turns to IBM’s additional attempt to impose an even more circumscribed
time period within which opt-ins’ claims must have accrued in order to piggyback on the
Rusis/Gerrits charges. IBM argues that the Court should dismiss opt-ins whose ADEA claims
accrued before the earliest date of discrimination and after the latest date of discrimination
specified in the Rusis/Gerrits charges. See Def. Third Mem. at 20–22, 23–24; Def. Third Reply
at 8, 9. As IBM sees it, because the Second Circuit requires the claims of non-filing individuals
to have arisen in the “same time frame” as those of the charge-filing plaintiff, all opt-ins whose
claims accrued before March 1, 2018, and after June 27, 2018, may not piggyback onto the
Rusis/Gerrits charges. Def. Third Mem. at 20–21, 23–24 (quoting Holowecki II, 440 F.3d at
565). IBM contends this is especially so with respect to the forward scope of the Rusis/Gerrits
charges, because neither Rusis nor Gerrits selected the “continuing action” box on the EEOC
charge form, which would have indicated that IBM’s discrimination continued past the date of
their separations. Id. at 23. While Plaintiffs do not disagree with the general proposition that
opt-in claims must arise within the same time frame as the claims on which they are
piggybacking, they oppose IBM’s “overly[ ]narrow” interpretation of the earliest and latest dates
of discrimination specified in the Rusis/Gerrits charges. Pls. Third Opp. at 22. On this point, the
Court agrees with Plaintiffs. IBM employs an intentionally crabbed view of the Rusis/Gerrits
charges that cannot be squared with the purposes behind the ADEA’s administrative exhaustion
requirement.
In addition to providing a blank space for the “particulars” of the charge, the EEOC’s
Plaintiffs to continue adding subsequent opt-in plaintiffs with later-filed charges to extend, seemingly without limit,
the scope of the claims that were asserted in 2018 in this lawsuit.
73
standard “Charge of Discrimination” form also includes a field titled “Date(s) Discrimination
Took Place,” with a blank space provided under “Earliest” and “Latest,” and an additional option
to select “Continuing Action.” See, e.g., Rusis Charge. In his charge, Rusis stated “March
2018” under the “Earliest” option; Gerrits stated “March 29, 2018.” See id.; Gerrits Charge.
They each provided “June 27, 2018 (effective date of layoff)” under the “Latest” option. See
Rusis Charge; Gerrits Charge. Neither checked the option for “Continuing Action.” Despite
delimiting the dates of discrimination as such, in detailing the charge particulars, the
Rusis/Gerrits charges state that “over the last several years, IBM has been in the process of
systematically laying off its older employees,” and that “IBM has laid off at least 20,000
employees over the age of forty in the last five years.” E.g., Rusis Charge.
According to IBM, the Rusis/Gerrits charges specify a four-month period, March 2018
through June 2018, during which IBM allegedly carried out its discriminatory layoffs, and,
therefore, any opt-ins whose claims accrued before March 1, 2018, or after June 27, 2018, may
not piggyback onto these charges. See Def. Third Mem. at 20–22. The more general statements
in the charge particulars, IBM contends, provide context only and do not broaden the temporal
scope of discrimination alleged. See Def. Third Reply at 8. Ultimately, IBM argues, based on
the Rusis/Gerrits charges, it could not have been on notice of discriminatory conduct predating
March 1, 2018, or post-dating June 27, 2018. Def. Third Mem. at 21–24.
IBM’s argument barely makes it past the straight-faced test. Its interpretation of the
phrase “same time frame” does not accord with the policy in this circuit of employing a “relaxed
view of the requirements that the events occurred within the same time period.” Barrett, 39 F.
Supp. 3d at 454 (citing Cronas, 2007 WL 2739769, at *8); see also Mavis Disc. Tire, 2013 WL
5434155, at *4. IBM fails to cite any case within this circuit in which a court interpreted the
74
scope of a charge so narrowly so that the date listed as the earliest or latest date of discrimination
was treated as an inflexible cutoff point. 55 Cf. Daly v. Westchester Cnty. Bd. of Legislators, No.
19-CV-4642, 2021 WL 229672, at *5 (S.D.N.Y. Jan. 22, 2021) (“‘[I]t is well-settled that merely
checking a box, or failing to check a box[,] does not necessarily control the scope of’ the EEOC
Charge.” (quoting Jones v. N.Y.C. Dep’t of Educ., 286 F. Supp. 3d 442, 448 (E.D.N.Y. 2018));
Mohamed v. NYU, No. 14-CV-8373, 2015 WL 3387218, at *13 (S.D.N.Y. May 21, 2015)
(holding that failure to select box for “Retaliation” on EEOC form was “not dispositive of
whether [plaintiff’s] current claim of retaliation can be viewed as reasonably related to his other
allegations”). The factual allegations made in the Rusis/Gerrits charges plainly invoke a much
longer timespan than the limited period of months provided in the box requesting the filer to
provide the “Date(s) Discrimination Took Place.” That is especially so in this case, where any
concern about whether the EEOC or IBM were on notice of discriminatory conduct predating
March 1, 2018, appears to be resolved, at least with respect to IBM’s Resource Actions, by the
existence of the EEOC investigation into IBM. As such, even if the Rusis/Gerrits charges
provided notice to IBM and the EEOC of discrimination only within the four-month period
specified, IBM cannot reasonably argue that neither it nor the EEOC were on notice of
discrimination beyond that limited time frame.
In short, the Court holds that opt-ins whose claims accrued before March 1, 2018, or after
June 27, 2018, are not, as a matter of law, barred from piggybacking onto the Rusis/Gerrits
charges. They are, however, still subject to the temporal scope limitations based on the dates on
which the Rusis/Gerrits charges were filed, discussed above, and they are still subject to the
55
Adams v. N.Y. State Educ. Dep’t, 752 F. Supp. 2d 420, 467 (S.D.N.Y. 2010), the only case IBM cites from
the Second Circuit on this point, states only that generalized assertions of vague similarities in discriminatory
treatment occurring at different points in time are insufficient to support piggybacking.
75
overarching requirement that their claims must have arisen in the “same time frame” as those of
Rusis/Gerrits.
CONCLUSION
For the reasons stated above, IBM’s motions for judgment on the pleadings are
GRANTED in part and DENIED in part. Named Plaintiff Eng’s ADEA claims are dismissed
with prejudice. The Arbitration Opt-Ins are dismissed without prejudice. The Court will permit
the parties to engage in discovery, if necessary, to determine which opt-ins must be dismissed as
a result of this opinion. Not later than April 23, 2021, the parties must meet and confer to
coordinate a proposed schedule for discovery — including a potentially bifurcated discovery
schedule pursuant to which the parties first engage in discovery concerning the EEOC’s
investigation into IBM and the factual circumstances surrounding certain opt-ins’ and Named
Plaintiff McGonegal’s separations — and for any subsequent motion practice, including
Plaintiffs’ contemplated renewed motion for conditional certification of a proposed collective,
any contemplated motion for decertification of the collective by IBM, and whatever other motion
practice the parties anticipate will be necessary to define the proper scope of the ADEA opt-in
collective in this action. Because the Court denied Plaintiffs’ initial motion for issuance of
notice to potential opt-ins, the Court did not set a deadline for individuals to opt in to this action,
as it would have if the Court had granted Plaintiffs’ request for issuance of notice. Plaintiffs
requested a 90-day notice period, which is standard in this district. Given that more than twoand-a-half years have passed since Plaintiffs commenced this action and more than one year has
passed since the Court denied Plaintiffs’ request for issuance of notice, the Court finds that
former IBM employees have had ample time in which to opt in to this action. As such, the Court
sets the date of this opinion as the deadline for former IBM employees to opt in to this case.
76
Should the Court grant any subsequent renewed motion for issuance of notice, the Court will
consider reopening the opt-in period at that time.
The Clerk of Court is respectfully directed to terminate the open motions at Dkt. 120,
Dkt. 123, and Dkt. 129.
SO ORDERED.
____________________________
_
_________________________________
VALERIE CAPRONI
CAPRONI
O
United States District Judge
Date: March 26, 2021
New York, New York
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