UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CARLYLE D. FORDE, WALTER GRABOWSKI, NICHOLAS T. BRUCK, and ALBERT J. DWYER on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-
NEW YORK TELEPHONE COMPANY and NYNEX CORPORATION,
Defendants.

93 Cir. (

)

COMPLAINT COLLECTIVE AND CLASS ACTION

PLAINTIFFS DEMAND A JURY TRIAL

Plaintiffs, by their attorneys, Vladeck, Waldman, Elias & Engelhard, P.C. and Gleason, Dunn, Walsh & O’Shea, complaining of defendants New York Telephone Company ("NYTEL") and NYNEX Corporation ("NYNEX"), allege as follows:

PRELIMINARY STATEMENT

i.

This action is brought to remedy discrimination in

employment on the basis of age, in violation of the Age Discrimina-

tion in Employment Act, as amended, 29 U.S.C. § 626 et seq. ("the

ADEA") and the New York Human Rights Law, Executive Law § 290 et

seq. ("HRL"); and to remedy defendants’ interference with the

attainment of plaintiffs’ rights to pension benefits, in violation

of the Employee Retirement Income Security Act of 1974 ("ERISA"),

as amended, 29 U.S.C. §1001 et seq. Plaintiffs bring this action

on behalf of themselves and all other similarly situated former

110~29 1

employees of NYTEL. Plaintiffs seek injunctive and declaratory

relief, compensatory and liquidated damages, and other appropriate

legal and equitable relief pursuant to 29 U.S.C. § 626, Executive Law § 296 and 29 U.S.C. § i132(a) and (g).

2.

On December ii, 1992 NYTEL discharged hundreds of

employees age forty and older, many of whom had worked for NYTEL

for more than twenty years.

These discharges resulted from

defendants’ implementation of the NYNEX Force Management Plan

("FMP"), a reduction in force which was intended to, and did, discriminatorily affect long-term employees forty years or older.

Upon information and belief, NYTEL’s and NYNEX’s discharge of older

employees resulted from policies, practices and a corporate culture

disfavQring older employees.

Implementation of the FMP

discriminated against older employees by disproportionately

selecting them for discharge, in part through the application of a

"two year service" rule, a "two year degree" rule and evaluation

practices which, as described below, disfavored older workers.

3.

Defendants violated ERISA by terminating the

employment of plaintiffs so that they would not become eligible for

NYNEX’s service pension program -- a pension with valuable

accompanying benefits, including full medical insurance coverage,

that is far superior to the pension NYTEL employees otherwise

receive.

Defendants further violated ERISA by depriving those

employees who were eligible for their service pension program of

2

additional benefits to which they otherwise would have become entitled if they had not been discharged.

PARTIES

4.

Plaintiff Evelyn Krueger ("Krueger") is a resident

of the State of New York and was employed as an outside plant

engineer with NYTEL in its Kingston Mid-State Engineering Unit

until NYTEL terminated her employment on December ii, 1992, when

she was fifty-three years old and had been employed by NYTEL for

more than twenty-four years.

5.

Plaintiff Francis J. Lupardo ("Lupardo") is a

resident of the State of New York and was employed as a power

engineer with NYTEL in Long Island, New York until NYTEL t6rminated

his employment on December ii, 1992, when he was fifty-nine years

old and had been employed by NYTEL for almost twenty-two years.

6.

Plaintiff Carlyle D. Forde ("Forde") is a resident

of the State of New Jersey and was employed in NYTEL’s Operations

Staff in New York City until NYTEL terminated his employment on

December ii, 1992, when he was forty-eight years old and had been

employed by NYTEL for almost twenty-nine years.

7.

Plaintiff Walter Grabowski ("Grabowski") is a

resident of the State of New York and was employed in NYTEL’s

Training Department in New York City until NYTEL terminated his

employment on December II, 1992, when he was forty-five years old

and had been employed by NYTEL for over twenty years.

I |0~9_|

8.

Plaintiff Nicholas T. Bruck ("Bruck") is a resident

of the State of New York and was employed as a right-of-way and

claims manager and engineer in NYTEL’s Kingston Mid-State

Engineering Unit until NYTEL terminated his employment on December

ii, 1992, when he was forty-seven years old and had been employed

by NYTEL for twenty-six years.

9.

Plaintiff Albert J. Dwyer is a resident of the State

of New York and was employed as a manager in the engineering

department with NYTEL in Albany, New York until NYTEL terminated

his employment on December ii, 1992, when he was forty-five years

old and had been employed by NYTEL for twenty-three years.

i0. Defendant New York Telephone Company ("NYTEL") is a

corporation with its principal place of business in New York City.

NYTEL provides local and long distance telephone service to consumers throughout New York State, and has employees and offices

throughout the state.

NYTEL is a wholly owned subsidiary of

defendant NYNEX.

ii. Defendant NYNEX Corporation ("NYNEX") has its

principal place of business in White Plains, New York and is the

parent company of NYTEL and other New York communications and

computer service companies.

110"29_1

- 4 -

JURISDICTION AND VENUE 12. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331; the ADEA, 29 U.S.C. § 626(c) ; ERISA § 502(e) (i), 29 U.S.C. § i132(e) (i). 13. On November 13, 1992, or thereafter, individual named plaintiffs filed in this District on their own behalf and on behalf of similarly situated individuals timely charges of discrimination against defendants with the Equal Employment Opportunity Commission (the "EEOC"), complaining of the unlawful acts alleged herein. Sixty days have elapsed from the filing with the EEOC of the first charges, and plaintiffs have complied with all statutory prerequisites to the filing of this action. 14. Venue is proper in this District because the unlawful employment practices complained of occurred within the Southern District of New York. Venue is proper under ERISA § 502, 29 U.S.C. § I132(e) (2) because the employee benefit plans herein are administered in this District, defendants’ primary places of business are in this District, and defendants’ interference with the attainment of plaintiffs’ rights under the employee and welfare benefit plans occurred in this District.
COLLECTIVE AND CLASS ACTION ALLEGATIONS 15. The individual named plaintiffs, who were all older than forty and were all NYTEL employees until they were discharged pursuant to defendants’ FMP, bring this action on behalf of

110’29_1

- 5 -

themselves and all other similarly situated former employees who

have common claims under the ADEA, HRL and ERISA.

16. With respect to the ADEA claim, this collective

action is brought pursuant to the ADEA and the Fair Labor Standards

Act, 29 U.S.C. § 216(b), by the individual named plaintiffs on

behalf of themselves and all former NYTEL employees age forty and

older who were discharged under the FMP or otherwise discriminated

against in the implementation of the FMP because of their age and

who have given or will give their written consent to be plaintiffs

herein pursuant to 29 U.S.C. § 216(b) ("ADEA class"). Written

consent is attached hereto for one hundred and forty-five class

members as Exhibit A.

17. The HRL claim is brought as a class action pursuant

to Rule 23(a) and (b) (3) of the Federal Rules of Civil Procedure. The individua% named plaintiffs bring this class action on behalf

of themselves and all former NYTEL employees age forty and older

who were discharged under the FMP or otherwise discriminated

against in the implementation of the FMP because of their age and

who have given, or will in the future give, their written consent

to being part of the ADEA collective action ("HRL class").

18. The ERISA claim for the denial of pension benefits

is brought as a class action pursuant to Rule 23(a) and (b) (3) of

the Federal Rules of Civil Procedure.

The individual named

plaintiffs bring this class action on behalf of themselves and all

former NYTEL employees who were, or would have become, eligible for

11029 1

- 6 -

defendant’s service pension but who were discharged under the FMP in order to interfere with their attainment of service pension benefits, or additional pension benefits ("pension class").
19. The number of potential members of the ADEA, HRL, and pension classes is not precisely determined at the present time but can be established through discovery. NYTEL reported in early October 1992 that there were approximately 625 employees put "at risk" by the FMP; upon information and belief, each class consists of over one hundred former NYTEL employees and, therefore, is so numerous that joinder is impracticable.
20. Since all members of the classes have been damaged by the same wrongful acts alleged herein, these acts raise questions of law or fact common to the class which predominate over any questions affecting only individual members of the class. These questions include, but are not limited to:
(a) whether defendants terminated plaintiffs’ employment pursuant to a practice of discriminating against employees on the basis of their age;
(b) whether defendants’ application of the "two year service" rule and the "two year degree" rule ~operated in such a manner as to have a discriminatory impact against employees who were forty years old or older;
(c) whether defendants’ selection process and criteria used in the FMP discriminated against employees on the basis of their age;
11029 1

(d) whether defendants’ termination of plaintiffs’

employment was motivated by an intent to interfere with plaintiffs’

attainment of any rights under NYNEX’s service pension plan and

whether such termination was intended to deprive plaintiffs of a

service pension or additional service pension benefits to which

they would have otherwise become entitled.

21. The claims of the individual named plaintiffs are

typical of the claims of the class and do not conflict with the

interests of any other members of the collective action or class.

in that all have suffered from the same wrongful acts of

defendants.

22. The individual named plaintiffs will fairly and

adequately represent the interests of the class.

Plaintiffs’

attorneys are qualified to pursue this litigation and have

extensive experience in class actions.

23. A collective and class action is superior to other

methods for the fair and efficient adjudication of this

controversy. Upon information and belief, no litigation similar to

this action has been commenced. A collective and class action regarding the issues in this case create no problems of

manageability.

11029 1

- 8 -

FACTUAL ALLEGATIONS Defendants’ Implementation of the FMP 24. In or about August-September 1992, NYTEL informed its employees by news bulletin, memoranda and through internal television broadcasts that it would be carrying out a reduction in force that fall. Upon information and belief, this reduction in force at NYTEL was part of a larger plan, the FMP, formulated and implemented by NYNEX which was to effect employees of NYNEX and its subsidiaries, including NYTEL. 25. The FMP implemented by NYTEL was allegedly designed to retain those deemed to be the most appropriate or best managers for the future, while discharging those employees deemed to be less valuable to the business. Under the process, hundreds of employees were selected and put "at risk" for discharge; other employees were "retained" so that their positions would be unaffected; and a third group was designated "eligible for voluntary separation" ("EVS"), but would not be separated from NYTEL unless they volunteered to leave. As part of this process, NYTEL compiled lists of those employees who wished to retire voluntarily and allowed them to retire with a pension and benefit retirement package. For each employee who voluntarily retired, NYTEL would "save" an "at risk" employee who could fill the position of an individual who left voluntarily. The balance of the "at risk" employees were to be discharged at the end of the process on December Ii, 1992.

I I (Y29_ I

- 9 -

26. In order to select those employees who would be

classified "at risk," "retained," or "EVS", NYTEL purportedly

evaluated each employee and weighed the employee’s performance and

qualifications. Upon information and belief, NYTEL first divided

the parts of its work force subject to the FMP into more than fifty

"banding entities," each of which allegedly included a group of

employees at a similar salary level, with similar responsibilities,

and in a similar work department or area. Within each banding

entity, NYTEL supervisors completed written evaluations of

supervisees based on the two criteria of "performance" and "added

value to the business." Those evaluations were then analyzed by a

"banding team" which assigned a banding number between "I" and "4"

to each employee, where "i" was assigned to employees considered

most valuable and "4" to persons who would almost surely be included in the "at risk" group.

27. Upon information and belief, NYTEL and NYNEX made a

policy decision to exempt certain employees from any part of this

banding process so that they would not be placed in an "at risk,"

"retained" or EVS group.

Defendants designated the following

groups of employees as "ineligible" for banding:

(a) those employees who had received a promotion with a

salary increase in the previous year; and

(b) those employees who had been employed two years or

less with NYTEL ("two year service rule").

11029 I

- 10 -

28. In determining an employee’s "added value to the business," defendants applied a policy that gave an employee extra value if he or she had completed a professional job-related degree after January 1990, i.e., in approximately the previous two and ~one-half years (the "two year degree rule"). This extra value would be credited to the employee’s evaluation when the banding team assigned a banding number to that employee.
29. On October 13, 1992, NYTEL informed approximately six hundred and twenty-five of its employees that they were at risk under the FMP. At that time, NYTEL also-asked for volunteers who wished to leave the company pursuant to the voluntary separation program. For each individual who volunteered to leave the company, the company "saved" the position of one at risk individual in the same banding entity. If an at risk employee was not informed that he had been "saved" by December ii, 1992, then his or her employment terminated on that day.
30. Upon information and belief, older employees age forty and older were disproportionately selected for the "at risk" group announced on October 13, 1992 and for those discharged on December ii, 1992. Such over-representation of older employees resulted from defendants’ discriminatory policies and practices.
31. Upon information and belief, the two year service rule had a disproportionate and discriminatory impact on older employees because most employees with less than two years of service were younger than forty and were automatically deemed
11
110"/9_1

ineligible for the banding process. In contrast, employees with

more than two years’ seniority were more likely to be over forty,

and were banded in a process that could lead to their being

designated at risk.

Defendants’ two year service rule had no

substantial business necessity which justified its application in

the FMP.

32. Defendants’ granting of automatic exemptions to

younger employees was a part of their discriminatory policies

against older employees. Upon information and belief, defendants

knew and intended that implementation of the two year service rule

would disproportionately affect older employees.

33. Upon information and belief, the two year degree

rule also had a disproportionate and discriminatory impact on older

employees because those employees who had received a degree within the two years prior to the FMP were generally employees who were

younger than forty. Such extra value for a recent degree gave

those younger employees greater added value in their evaluations

and a discriminatory advantage in the banding process. Defendants’

two year degree rule had no substantial business necessity which

justified its application in the FMP.

34. Defendants’ granting of extra value to younger

employees who had recent degrees was a part of defendants’

discriminatory policies against older employees. Upon information

and belief, defendants knew and intended that giving greater value

to recent degrees would make older individuals disproportionately

110"29 1

- 12 -

ineligible for favorable treatment, and would thus discriminate against older employees.
35. Upon information and belief, application of the two year service rule and the two year degree rule had a discriminatory impact on every member of this collective action and played a part in their selection for discharge under the FMP.
36. Upon information and belief, the two year service rule and the two year degree rule are examples of defendants’ attitude toward older employees and their encouragement of a corporate culture that, as described below, generally held older workers in low esteem. Upon information and belief, NYNEX and NYTEL encouraged its managers to take a less favorable view of the contributions of its older workers.
37. Upon information and belief, defendants NYNEX and NYTEL encouraged NYTEL’s managers to manipulate the banding criteria and apply the criteria in a discriminatory manner and evaluate employees’ performance so that older employees would be adversely affected. In such a manner, defendant NYTEL selected more older employees for banding groups "3" and "4" and thus assured that these older employees would be "at risk."
38. Many of the plaintiffs in this action petitioned their managers at NYTEL to provide them with increased training opportunities in newly developing technical areas. Plaintiffs were repeatedly told by their managers that new NYTEL employees had priority in taking the technical classes and training sessions
13
11029 I

offered by NYTEL, or they would be repeatedly enrolled in the

classes only to have NYTEL cancel their classes.

In many

instances, plaintiffs were denied such training opportunities on

the basis of their age.

39. In September 1992, NYTEL’s senior management made a

televised presentation explaining the FMP process to those

employees who were at risk. At that presentation, Alana Kennedy,

NYTEL’s Director of Human Resources, explained that the FMP "was

for people with long time in a business." In a second televised

presentation on October 16, 1992, NYTEL’s President Dick Jalkut

told employees that management wanted to build a "new" New York

Telephone Company. On another occasion, Executive Vice President

Robert Thrasher told a group of employees that the only reason

unionized workers "fifty years or older" took NYTEL management jobs

was so that they "don’t have to carry tools." Other members of

NYTEL’s management made similar comments showing NYTEL’s

discriminatory intent and reflecting the attitudes conveyed by its

senior management, including but not limited to, the following:

(a) a district engineer told a group of employees in

early 1991 that it was time for most of them to retire because

NYTEL needed "new energy" and "new blood"; he later told a class

member in September 1992 that new hires were exempted from the

banding process because the company needed "new blood;"

(b) a manager told a meeting that the FMP-would be

designed toward eliminating all the "old Bell heads"; that same

14
11029 1

manager also stated that "old brains are drained," and that NYTEL wanted "new clear-headed" people;

(c) another manager told an employee that he was an "old

soldier," and that everyone understood that the older an employee

was and the more years he or she had worked with the company, the

less potential he or she had;

(d) a district manager explained to his employees in

1991 that half of them wouldn’t be employed at NYTEL in a year

because he had been informed by NYTEL management that the company was on a "youth movement";

(e) during the FMP process, NYTEL managers repeatedly

asked an older employee about his age and inquired why he wasn’t

taking the early retirement; this employee was told by his district

manager that NYTEL’s philosophy was that it would be better to designate employees near retirement as "at risk" so that other

younger people would be less hurt by FMP and that the company

philosophy was that he should retire so as to save a younger

person’s job.

(f)

a district manager told one of his employees that

he wanted to rotate her back into the field and bring in new

instructors because he wanted "new blood;"

(g) in 1988, an employee who was hired in his mid-

thirties, when he was hired by NYTEL was told that NYTEL wanted to

hire him because it had an older work force, was looking for "new

11029 I

- 15

blood," and expected that the older employees would retire on their

own in the next few years;

(h) a human resources manager explained NYNEX’s goals

for the turn of the century to a group of employees and said that

there were too many older employees at NYNEX, that NYNEX had the

oldest population of any company in the Bell system, and that

should be corrected in the future;

(i) a district level manager told an employee in his

area that NYTEL would, in the next few years, terminate the

employment of all its non-support staff employees who did not

possess a college degree.

Upon information and belief,

implementation of such a rule would disproportionately affect

NYTEL’s older employees. 40. Upon information and belief, NYTEL’s human resources

department prepared a comPilation of named employees, for use in

the FMP, which included identification of "at risk" employees with

their ages specified. Upon information and belief, it was NYTEL’s

previous practice not to include an employee’s age on documents

related to employment actions.

Employee Benefits for NYTEL Employees 41. NYTEL, on its own and through NYNEX offers important benefits to its employees as part of their total compensation packages, including medical insurance, life insurance, disability insurance, and a "service pension." NYNEX has a company pension

16
110~9_1

plan, the NYNEX Management Pension Plan (the "service pension plan" or "plan"), by which it offers a "service pension" to NYTEL

employees (and employees of its other subsidiaries) based on a combination of years of service with the NYNEX subsidiary ("net

credited service" or "NCS") and each employee’s age.

Upon

information and belief, this service pension significantly

increases the total value of the vested pension benefit, and also

entitles a former employee to full medical insurance coverage and

life insurance.

42. Under the NYNEX plan, an employee becomes eligible

for a service pension and accompanying benefits when he or she (a)

has a NCS of twenty-five years and is fifty years old, or; (b) has

a NCS of twenty years and is fifty-five years old, or; (c) has a

NCS of ten years and is sixty-five years old, or (d) has thirty

years of net credited service, regardless of age. Under NYNEX’s

service pension plan, there is a reduction in pension benefits for

those employees who retire or take their pension before they reach

certain specified ages.

The FMP’s Effect on Plaintiffs’ Pension Benefits 43. Defendants’ termination of the employment of many
older employees dramatically affected their pensions. Defendants discharged plaintiffs as part of a plan to interfere with plaintiffs’ attainment of their service pension and other pension benefits that they would have become entitled to under the plan.

110’29_1

- 17 -

Many of the discharged employees needed to complete only a few more years of service in order to become service pension eligible. Upon information and belief, defendants deliberately discharged a disproportionate number of individuals who were close to service pension eligibility in order to avoid liability for the service pension and accompanying benefits, such as medical insurance.
44. Upon information and belief, even those employees who were eligible for a service pension at the time of their discharge were thereby penalized,-because they received a reduced pension before they had reached a specified age and because they were not permitted to continue working to accrue additional pension credit.
45. On November 19, 1992, NYNEX’s Board of Directors altered its eligibility criteria for a service pension for those employees subject to the FMP by also making an individual whose combination of age and NCS equaled or exceeded 75 eligible for a service pension and the associated benefits (the "rule of 75"). With this modification in policy, more employees subject to the FMP and in the "at risk" group became eligible for a service pension. Upon information and belief, defendants altered the pension eligibility criteria for those employees subject to the FMP in response to complaints by class members and in order to obfuscate defendants’ illegal conduct in violation of ERISA and to discourage further complaints.
18
110’29_1

Discharqe of the Named Plaintiffs 46. Plaintiff Krueger had been employed by NYTEL for

twenty-four years when defendants discharged her; her performance

throughout her employment with NYTEL was excellent. At the time of

her discharge, Krueger was an outside plant engineer in the

Kingston area.

In her 1991 performance review, Krueger’s

supervisor complimented her efforts in reducing customer trouble

reports and noted that her customer service performance had

improved significantly; she had done an "outstanding job" in

teamwork and had received Several written commendations. From the

mid-1980’s to 1990, Krueger received an extra merit award

performance bonus or higher than normal annual progression

increases in her salary.

In the last several years, Krueger

repeatedly requested additional training in newly developing

technical areas from NYTEL, but after registering for such classes,

NYTEL repeatedly cancelled them. On one occasion she was told by

a supervisor that she should cancel her registration for a training

class.

47. At the time that defendants notified her that she

was "at risk," Krueger was not eligible for a service pension or

medical benefits under NYNEX’s service pension plan. Krueger did

become eligible for a service pension under the "rule of 75" after

NYNEX changed its eligibility requirements on November 19, 1992;

but her pension will be reduced because her discharge forced her to

take it earlier than she otherwise would have, and she will lose

I I 0"29_ 1

- 19 -

additional pension, rights to which she would have become entitled had she continued to work for NYTEL.
48. Plaintiff Lupardo had been employed by NYTEL for almost twenty-two years when NYTEL discharged him; his performance throughout his employment with NYTEL was excellent. At the time of his discharge, Lupardo was employed as a subject matter expert and power engineer. In 1990 Lupardo’s supervisor wrote that Lupardo was the top performer in the power group and the only experienced power planner for Long Island. In December 1991, Lupardo exceeded more than half of his performance goals and met his other two goals. In that year, his supervisor wrote that Lupardo had done most of the power planning for Long Island, that his planning was "exceptional," and that hiscontributions to the company were "just outstanding." Lupardo’s supervisor identified Lupardo as ready for promotion in 1990 and 1991; he later wrote that he was "more than happy" with Lupardo’s performance for the first half of 1992. At the time that defendants notified him that he was "at risk," Lupardo was eligible for a service pension and medical benefits under NYNEX’s service pension plan; however, Lupardo’s discharge interfered with his attainment of additional pension rights to which he would have become entitled.
49. Plaintiff Forde had been employed by NYTEL for almost twenty-nine years when NYTEL discharged him; his performance as a staff director in NYTEL’s Operations Department was excellent. In his 1991 evaluation, Forde exceeded his performance objectives

110’29_1

- 20

in several categories; it was the best performance evaluation that

Forde had received during his NYTEL career. In the middle of 1992,

Forde’s supervisor nominated him for a NYTEL Presidential Award on

the basis of his high level performance in improving service and

reducing costs. After receiving a high performance review and then

being banded as "at risk" pursuant to the FMP, Forde spoke with

Alana Kennedy of Human Resources and asked her to review his

banding rating and designation as "at risk." Kennedy agreed to

review his banding information, and told Forde that his situation

was "not so bad" since he had qualified for a reduced service pension. Kennedy never communicated with Forde thereafter.

50. At the time that defendants notified Forde that he was "at risk," Forde was eligible for a service pension and medical

benefits under NYNEX’s service pension plan, but his pension will

be discounted because his discharge forced him to take his pension

early and he will lose additional pension rights to which he would

have become entitled.

51. Plaintiff Grabowski had been employed by NYTEL for over twenty years when defendants discharged him; his performance

throughout his employment with NYTEL was excellent. In his 1991

evaluation, Grabowski was praised by his supervisor for his ability

to train and instruct people, and he exceeded expectations in two

performance categories and met expectations in two others.

In

early 1992, Grabowski’s supervisors and peers chose him to be

recognized for extraordinary effort in the fourth quarter of 1991,

21
11029_1

and he received an award payment. At the time that defendants notified him that he was "at risk," Grabowski was not eligible for a service pension or medical benefits under NYNEX’s service pension plan, nor did he become eligible under the November modifications to the plan. Grabowski would have been eligible for a service pension in approximately five years.
52. Plaintiff Bruck had been employed by NYTEL for over twenty-six years as a right of way and claims manager when defendants discharged him; his performance throughout his employment with NYTEL was excellent. In his 1991 evaluation, Bruck exceeded his performance objectives in two categories and met them in all other categories. In his 1991 performance review, Bruck’s supervisor wrote that he maintained a "high level of proficiency;" Bruck had a high level of enthusiasm and dedication and demonstrated the ability to recognize problem areas. At the time that defendants notified him that he was "at risk," Bruck was not eligible for a service pension or medical benefits under NYNEX’s service pension plan, nor did he become eligible under the November modifications to the plan. Bruck would have been eligible for a service pension in approximately four years. In the last several years, Bruck repeatedly requested additional training in newly developing technical areas from NYTEL but was told that NYTEL was unable to provide him with such training opportunities.
53. Plaintiff Dwyer had been employed by NYTEL for twenty-three years when NYTEL discharged him; his performance
22

throughout his employment with NYTEL was excellent. Prior to 1991,

Dwyer spent his entire career in Network Services, was one of the

top rated supervisors in that area, and received an extra merit

award performance bonus in every year from 1986-1990. In 1991,

upon the urging of his managers, Dwyer transferred to a new job in

the Engineering Department requiring some different skills and

knowledge. Despite the fact that Dwyer was transferred to a new

position less than two years prior to the date of FMP, he was not

deemed "ineligible" for the FMP, as were other younger employees

with less than two years of service with NYTEL.

54. At the time that defendants notified him that he was

"at risk," Dwyer was not eligible for a service pension Or medical

benefits under NYNEX’s service pension plan, nor did he become

eligible under defendant NYNEX’s November modifications to the

plan.

Dwyer would have ben eligible for a service pension in

approximately five years.

FIRST CAUSE OF ACTION Violation of the ADEA 55. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 54 above. 56. Defendants have violated the ADEA by discriminating against plaintiffs because of their age in the terms and conditions of their employment, as described above.

11029 1

- 23 -

57. Defendants

willfully violated the ADEA by

discriminating on the basis of age knowingly or with reckless

disregard of the law.

SECOND CAUSE OF ACTION Violation of the Human Rights Law 58. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 54 above. 59. Defendants have violated the New York Human Rights Law, N. Y. Exec. Law § 290 et seq. by discriminating against plaintiffs because of their age in the terms and conditions of their employment, as described above.

THIRD CAUSE OF ACTION Violation of ERISA With Respect to Employee Pension Benefit Plan
60. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 54 above, as if fully stated herein.
61. Defendants have violated § 510 of ERISA, 29 U.S.C. § 1140, by interfering with the attainment of plaintiffs’ rights to defendants’ service pension plan benefits and additional pension benefits to which plaintiffs would have been entitled absent defendants’ decision to terminate plaintiffs’ employment.

WHEREFORE, plaint iffs request that this Court enter judgment:

24

(a)

Certifying the Second and Third Causes of Action as

a class action under Rule 23 of the Federal Rules of Civil

Procedure;

(b)

Declaring the acts and practices complained of to

be in violation of the ADEA, the Human Rights Law, and ERISA;

(b)

Enjoining and restraining defendants from any

further violations of the ADEA, the Human Rights Law, and ERISA;

(c)

Directing defendant to take such affirmative steps

as are necessary to ensure that the effects of its unlawful

employment practices are eliminated;

(d)

Directing defendants to place plaintiffs in the

positions they would have been in but for the discriminatory and

wrongful treatment of them, and making them whole for all earnings,

compensation and benefits they would have received but for

defendants’ discriminatory and otherwise wrongful actions,

including, but not limited to, wages, supplements, bonuses, service

pension, severance benefits, medical insurance, life insurance, and

other lost benefits;

(e)

Awarding plaintiffs any and all amounts owing to

them that have been withheld in violation of the ADEA, the Human

Rights Law, and ERISA, together with interest thereon;

(f) Awarding plaintiffs liquidated damages pursuant to

the ADEA;
(g)

Awarding plaintiffs compensatory damages, including

damages for pain and suffering and emotional distress;

25
11029 I

GLEASON, DUNN, WALSH & O’SHEA Ron~id G D~n (RD 8---518 ) Ii North Pearl Street Albany, New York 12207 (518) 432-7511
-27-

(h)

Awarding plaintiffs the costs of this action,

together with reasonable attorneys’ fees; and

(i)

Granting such other and further relief as this

Court may deem just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil

Procedure, plaintiffs hereby demand a trial by jury in this action

of all issues so triable.

Dated:

New York, New York January 13, 1993

VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C.

By :i "

ladeck (JV 2908) 1501 Broadway, Suite 800 New York, New York 10036 (212) 354-8330

and -

11029 1

- 26 -

 
 Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)

163 F.R.D. 433 United States District Court,
S.D. New York.
Evelyn KRUEGER, Francis J. Lupardo, Carlyle D. Forde, Walter Grabowski, Nicholas T. Bruck, and Albert J. Dwyer on behalf of themselves and all
others similarly situated, Plaintiffs, v.
NEW YORK TELEPHONE COMPANY and NYNEX Corporation, Defendants.
Bernice CARROLL, Betsy J. Bell and William F. Perkins, individually and on behalf of all other
persons similarly situated, Plaintiffs, v.
NEW YORK TELEPHONE COMPANY, a Company of the NYNEX Corporation, Defendants.
Nos. 93 Civ. 0178 (JGK), 93 Civ. 0179 (JGK). | Sept. 22, 1995.
Attorneys and Law Firms
*436 Julian Birnbaum, Suja Thomas, Vladeck, Waldman, Elias & Engelhard, P.C., New York City, for Plaintiffs in Krueger, et al.
Leonard N. Flamm, Law Offices of Leonard N. Flamm, New York City, for Plaintiffs in Carroll, et al.
Amy Beech, Matthew Miklave, Epstein, Becker & Green, New York City, for Defendants NYNEX and New York Telephone.
Opinion
OPINION AND ORDER
KOELTL, District Judge.
These cases are brought by two plaintiff groups (the Krueger plaintiffs and the Carroll plaintiffs) claiming age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”) and the New York Human Rights Law, Executive Law § 290 et seq. (the “HRL”). Additionally, the Krueger plaintiffs assert claims for unlawful interference with pension rights under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”). The Krueger plaintiffs seek to (i) certify a class action pursuant to Fed.R.Civ.P. 23 with respect to both the state HRL and ERISA claims, and (ii) authorize a collective action with respect to the ADEA claims pursuant to the Fair Labor Standards Act,

29 U.S.C. § 216(b) (the “FSLA”) as provided in § 626(b) of ADEA. The Carroll plaintiffs seek only to proceed as a collective action with respect to their ADEA claims.1 *437 For the reasons that follow, the Court grants the motions.

1

The Carroll plaintiffs originally included in their papers

a motion that the Court take supplemental jurisdiction

over the state HRL claims on behalf of the five

unnamed members of their collective ADEA action

who have filed opt-in consents. At oral argument,

counsel withdrew this part of the motion, electing

instead to have these unnamed plaintiffs intervene in

order to bring their state HRL claims before the Court.

Consequently, the motion for the Court to exercise

supplemental jurisdiction over those claims is

withdrawn and those opt-in plaintiffs are granted leave

to intervene in the Carroll action to assert claims under

the HRL.

I.
Between October 13, 1992 and December 11, 1992, the New York Telephone Company decided to implement a reduction in force (the “Fall 1992 RIF”) of some 600 management employees. The Fall 1992 RIF was implemented in accordance with an approach described in the Force Management Plan (the “FMP”), a plan designed by NYT’s parent, NYNEX Corp. The FMP provided procedures and guidelines2 under which individual NYNEX business units would effectuate workforce reductions. The basic procedure involved the creation of “banding entities” or “bands” comprised of employees sharing certain characteristics, such as salary level, job function and geographic location. Under the FMP, employees within each band were to be evaluated by teams of NYT supervisors on the basis of two categories, “Added Value” (further categorized as “knowledge, skills, investment and potential”) and “Performance.” Once evaluated, employees were rated as “Maximum, High, Medium, or Low” and ordered by seniority within each rating. The least senior employee with a Low rating was first eligible to be placed “at risk,” and more senior employees with Low ratings would follow. (See Davies Aff. dated Apr. 30, 1993, ¶¶ 4–12.)

2

The parties describe the FMP differently. Plaintiffs

describe it as a “process,” while defendants call it a

“protocol.” For the issues before it, the Court need not

determine all the contours of the FMP. It is enough that

the actions that plaintiffs challenge as discriminatory

were taken pursuant to common aspects of the Fall

1992 RIF.

1

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)

For the Fall 1992 RIF, NYT created sixty-nine separate banding entities consisting of employees from twelve departments as well as all Division and District Managers and Secretaries. After employees were banded and evaluated and ranked, approximately 600 employees were placed at risk. About 100 of these employees accepted other jobs at NYT or other NYNEX companies. Approximately 200 employees, many of whom were never at risk, separated voluntarily from NYT. Approximately 271 employees were discharged involuntarily on December 11, 1992. (See Davies Aff. ¶¶ 13–15.) Among these were the Krueger plaintiffs, the Carroll plaintiffs, and the employees who have signed consents to participate in their respective ADEA collective actions. (Vladeck Aff. dated Jan. 11, 1995 ¶ 5, Ex. A; Compl. ¶¶ 4–9, 16.)
The plaintiffs’ lawsuits are based in part on several specific provisions of the Fall 1992 RIF.3 First, NYT excluded from the banding process at the outset employees who had either (i) been hired within two years of the RIF; or (ii) received a promotion within the past year. (See Compl. ¶ 27; Bruck Aff. dated Oct. 21, 1994, Ex. B; Davies Dep. dated June 16, 1994 at 153–54.) Second, evaluations of banded employees included in general as a component of “Added Value” whether the employee had been awarded an academic degree within the past two years. (Davies Dep. at 474–75.) The application of these provisions forms the basis of the Krueger and Carroll plaintiffs’ ADEA claims under a disparate impact theory and their claims under New York’s Human Rights Law. Additionally, the Krueger and Carroll plaintiffs assert ADEA claims under a disparate treatment theory based on the allegedly discriminatory way in which NYT and NYNEX managers executed the FMP and the plaintiffs point to numerous allegedly discriminatory remarks by management employees. The Krueger plaintiffs’ ERISA claims are also based on the implementation of the FMP and the alleged plan to interfere with plaintiffs’ attainment of their service pension and other pension benefits to which they would have become entitled.

3

Plaintiffs assert these provisions were part of the FMP

and applied to each of the banding entities. (Compl. ¶

2.) Defendants insist that distinctive selection and

evaluation criteria were applied for each band and that

the FMP was merely a loose set of guidelines. (Davies

Aff. ¶ 4.) Defendants do not, however, deny the

existence of the provisions forming the basis of

plaintiffs claims.

*438 II.

[1] [2] [3] [4] [5] The Krueger plaintiffs seek to certify a class action with respect to both the HRL claims and the ERISA claims pursuant to Rule 23 of the Federal Rules of Civil Procedure. Rule 23(a) sets out the requirements for certification:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The party seeking to certify a class, here the Krueger plaintiffs, bears the burden of demonstrating each of the four elements, Bishop v. New York City Dep’t of Hous. Preservation and Dev., 141 F.R.D. 229, 234 (S.D.N.Y.1992), and the Court must be “satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). If the Court is satisfied that each of the four elements have been met, and that the class is maintainable pursuant to one of the subdivisions of Fed.R.Civ.P. 23(b), the Court may, in its discretion, certify the class. In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 290 (2nd Cir.1992). Class certification, however, is not an occasion for examination of the merits of the case. The Court should not resolve any material factual disputes in the process of determining whether plaintiffs have provided a reasonable basis for their assertions. Sirota v. Solitron Devices, Inc., 673 F.2d 566, 570–72 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 86, 74 L.Ed.2d 80 (1982); Meyer v. Macmillan Publishing Co., 95 F.R.D. 411, 414 (S.D.N.Y.1982). Permitting a class certification proceeding to become a mini-trial on the merits is both unauthorized and unwise, as explained by the Supreme Court:
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on behalf of the class without any assurance that a class action may be maintained. This procedure is directly
2

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)
contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such ‘[a]s soon as practicable after the commencement of [the] action....’ In short, we agree with Judge Wisdom’s conclusion in Miller v. Mackey International, 452 F.2d 424 (CA5 1971), where the court rejected a preliminary inquiry into the merits of a proposed class action:
‘In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.’ Id. at 427.
Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials. The court’s tentative findings, made in the absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S.Ct. 2140, 2152–53, 40 L.Ed.2d 732 (1974). The issue here is whether, based upon the pleadings and the extensive evidentiary record before the Court, including the affidavits and the results of substantial discovery, the plaintiffs have carried their burden of showing that each of the requirements of Rule 23(a) have been met and that the action is maintainable under one of the subdivisions of Rule 23(b).
A. The Class Action Rule 23 Requirements:
1. Numerosity
[6] The Krueger plaintiffs seek to certify a class of “all former New York Telephone *439 employees age 40 and older who in violation of the HRL were discharged in the FMP because of their age and who have given their written consent to being part of the ADEA collective action.” (the “HRL class”) (Vladeck Aff. ¶ 9; Compl. ¶ 17.) Plaintiffs allege a class of at least 157 persons. (Vladeck Aff. ¶ 5.)4 The Krueger plaintiffs also seek to certify a class of “the named plaintiffs and all other former NYT employees who were, or would have become eligible for defendants’ service pension or other additional pension benefits but who were discharged under the FMP in order to interfere with their attainment of service pension benefits or additional pension benefits.” (the “ERISA class”) (Vladeck Aff. ¶ 10; Compl. ¶ 18.) This class is also limited to those who have filed consents to join the ADEA claims and is comprised of the same potential class members as the HRL class. (Vladeck

Aff. ¶ 10.)

4

At oral argument, plaintiffs indicated that the size of the

class appeared to be 162.

Because of the large number of potential class members and the obvious inefficiencies of trying 157 lawsuits individually, and given that defendants do not oppose certification of either of the two classes on such grounds, the Court finds the classes sufficiently large to satisfy the Rule 23(a) numerosity requirement. See Town of New Castle v. Yonkers Contracting Co., Inc., 131 F.R.D. 38, 40 (S.D.N.Y.1990) (generally excess of 40 plaintiffs satisfies numerosity requirement); Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir.1972) (70 plaintiffs is sufficient).

2. Commonality
[7] [8] [9] The commonality component of Rule 23(a) requires that plaintiffs show there are questions of law or fact common to the aggrieved class. Bishop, 141 F.R.D. at 237. “Commonality does not mandate that all class members make identical claims and arguments,” Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y.1992), only that “the gravamen of the Complaint is that defendants discriminated against class members in the same general fashion.” Open Hous. Ctr., Inc. v. Samson Management Corp., 152 F.R.D. 472, 476 (S.D.N.Y.1993). The mere presence of some asserted factual differences between class members is not a bar to commonality. Id. 152 F.R.D. at 476; Trief, 144 F.R.D. at 198.
a. The HRL Class [10] Plaintiffs argue that two aspects of the HRL claims satisfy the commonality element. First, the HRL class members make a disparate impact claim that the FMP was a single, company-wide plan applied to them in a way that affected them more harshly than NYT employees younger than 40. The following allegations are made. The FMP was formulated and implemented by NYNEX, the parent company of NYT. (Compl. ¶ 24.) Provisions of the FMP were designed by high-level officials and applied to all NYT employees. (Id. ¶ 25.) The FMP provided the conditions for determining which departments within NYT were to be banded and which employees would be placed “at risk” of termination within those banding entities. Specifically, plaintiffs point to the provisions exempting new hires and promotees, (Id. ¶¶ 31–32), and the provision affording preferential credit for recent recipients of academic degrees. (Id. ¶¶ 33–34.) Plaintiffs
3

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)
maintain that these provisions had a discriminatory impact on older employees. Because the provisions were part of the FMP, and because the FMP was applied across all banding entities, each potential class member was impacted by the provisions. (Id. ¶ 35.)
In support of the disparate impact claims, plaintiffs submit the affidavit of Dr. Janice Fanning Madden, a professor at the University of Pennsylvania and a specialist in labor economics and statistics. (See Madden Aff. dated Aug. 29, 1994, ¶ 1.) Dr. Madden performed an analysis of the effect of the FMP on NYT management employees. Dr. Madden concluded that workers over age 40 “experienced a statistically significant greater probability of being put at risk of layoff and of being involuntarily terminated than younger workers in the same banding entity.” (Id. ¶¶ 4, 16, Tables.) According to the study, the probability of being put at risk was 16.7% for employees 40 and over, 24.8% for employees 55 and over, and 11.1% for employees under 40. (Id. Table 3.) Dr. *440 Madden also concluded under various conditions that, had an age neutral selection processes been used, fewer workers over age 40 would have been placed at risk. (Id. ¶¶ 4, 11, Tables.) Dr. Madden determined that nearly 18% of workers under age 40 were excluded from being placed at risk because of the new hire/promotion rule, while only 0.9% of employees over 40 were so excluded. (Id. ¶ 14, Table 4.) Dr. Madden also supports plaintiffs’ allegation that employees approaching pension eligibility were disproportionately affected by the FMP. (Id. ¶ 15, Table 5.)
The second common question plaintiffs advance with respect to the HRL class is the claim of disparate treatment in that older NYT employees were intentionally treated less favorably than younger employees throughout the company during the implementation of the FMP. Plaintiffs cite numerous examples of widespread age bias among NYT managers responsible for executing the FMP. It follows, plaintiffs maintain, that class members share such disparate treatment. (See Compl. ¶ 39; Affs. Accompanying Pls.’ Notice of Mot.)
Defendants vigorously dispute plaintiffs’ characterization of the FMP. “[The FMP] was most assuredly not a single event which can be analyzed in the aggregate.” (Defs.’ Memo. Opp’n at 9.) Instead, defendants contend, the plaintiff class members are scattered across forty-three of the sixty-nine banding entities, each subject to dissimilar treatment in almost every respect. Defendants offer the analysis of Dr. Judith Stoikov, a professor and specialist in labor economics and statistics. (Stoikov Aff. dated May 1, 1995, ¶ 1.) Dr. Stoikov argues that each banding entity must be analyzed individually. This method is more appropriate, she explains, because the probabilities of being placed at risk or being terminated or demoted involuntarily varied across the bands, (Id. ¶ 6), and because each band “had its own decision making team

follow[ing] a unique set of guidelines to evaluate its employees and no others.” (Id. ¶ 18.) With respect to the new hire and new promotee exclusion, defendants argue that forty-eight class members were in banding entities where the provision did not exclude anyone. (Id. Table 5B.) With respect to the recent degree preference, defendants assert that some plaintiffs were in banding entities where no employee received any extra credit. (Davies Aff. dated May 15, 1995, ¶ 11.) Furthermore, Dr. Stoikov found that neither the recent degree rule, (Stoikov Aff. ¶ 9), nor the recent hire/promotion rule, (Id. ¶¶ 10–14), had a statistically significant adverse affect on older employees. Dr. Stoikov also rebutted plaintiffs’ allegation that employees nearer to pension eligibility were over-represented among at risk or involuntarily terminated employees. (Id. ¶¶ 15–17.)
The plaintiffs in turn challenge the validity of the defendants’ statistical methodology and argue that it is statistically improper to focus on the individual banding entities. (Madden Aff. dated June 16, 1995, ¶¶ 2, 4.) Plaintiffs point again to the common aspects of the plan and to the fact that individual employees who were at risk could take jobs in other banding entities. (Davies Aff. dated May 15, 1995, ¶ 16.) They argue that the defendants’ statistical analysis, which relies upon an examination of each individual banding entity, is therefore flawed. (Madden Aff. dated June 16, 1995, ¶¶ 4, 5.) Plaintiffs’ expert concluded that, on the basis of the plan as a whole, older workers were subject to a statistically significant increased probability of being put at risk. (Madden Aff. dated Aug. 29, 1994, ¶ 16.) Moreover, plaintiffs argue that their disparate impact action is not barred by the possibility that the total number of persons actually discriminated against through application of the FMP and its allegedly offending provisions may be lower than the number of class members. See Ingram v. Madison Square Garden Ctr, Inc., 709 F.2d 807, 812 (2d Cir.), cert. denied sub nom. Local Union No. 3, Int’l Bhd. of Elec. Workers, AFL–CIO v. Ingram, 464 U.S. 937, 104 S.Ct. 346, 78 L.Ed.2d 313 (1983).
[11] The statistical dueling is very much a matter in dispute directed at the merits of the case. It is inappropriate for the Court to determine the ultimate correctness of either parties’ contentions in the context of class certification. Selzer v. Bd. of Educ. of the City of New York, 112 F.R.D. 176, 180 (S.D.N.Y.1986) (Lasker, J.). The correctness *441 of the parties’ arguments on the merits will be resolved on dispositive motions or at trial. Without resolving the question, it is clear, based upon their proffered affidavits and deposition excerpts, that plaintiffs have made a substantial showing which, if believed, establishes the existence of a class as to whom there are common issues of law and fact.
Moreover, it is not necessary on this motion to address
4

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)
any distinction between plaintiffs’ disparate impact and disparate treatment theories. It is sufficient that plaintiffs have presented substantial evidence which, if believed, demonstrates that class members were discriminated against under the auspices of and in accordance with specific provisions of a single company-wide plan. This is not a case where individual class members bring an assortment of separate claims based on differing legal theories. Nor is it a case where similar legal claims are based on assorted and unrelated company actions, over a long period, in various locations, and in an uncoordinated manner. Rather, plaintiffs allege that specific provisions of a single corporate policy were applied in a single act to each class member in violation of New York law. See Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 599 (2d Cir.1986) (commonality requirement met where plaintiff alleged a discriminatory system implemented by a small group of company officials); Selzer, 118 F.R.D. at 178 n. 1 (uniform, centralized procedure); see also Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. at 2371 n. 15 (“Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class ... if the discrimination manifested itself ... in the same general fashion.”) Each class member poses the same fundamental legal and factual question: Did the defendants discriminate against that person in the implementation of the Force Management Plan? Defendants’ statistics address the answer to this question, not whether it is shared by members of the class. This common question amply satisfies Rule 23(a)(2).

Inc., 23 F.3d 663, 667–68 (2d Cir.1994).
[13] Defendants’ arguments do not justify denial of class action certification. Many of the defendants’ arguments present common defenses which may be asserted against nearly all members of the class, and these are common legal questions that would support a class action certification rather than argue against it. Bishop, 141 F.R.D. at 238 (typicality of defenses satisfies Rule 23). To the extent that there may be specific defenses against specific members of the class, they would not justify denying class action certification, see Lorber v. Beebe, 407 F.Supp. 279, 294 (S.D.N.Y.1975), and class counsel is well qualified to deal with any possible differences among individual class members. See In re Lilco Sec. Litig., 111 F.R.D. 663, 672 n. 10 (E.D.N.Y.1986).
[14] Plaintiffs have alleged that each class member was deprived of pension rights in contravention of ERISA. This allegation is a common question of law. Plaintiffs further allege that each class member’s pension *442 rights were compromised by the operation of a single corporate act, the Fall 1992 RIF under the FMP. This allegation is a common question of fact. That various discharged plaintiffs were placed in distinct positions vis-à-vis their pension eligibility does not destroy commonality. Accord Molina v. Mallah Org., Inc., 144 F.R.D. 37, 41 (S.D.N.Y.1992).
Accordingly, the Court finds the requisite commonality present for both the HRL class and the ERISA class.

b. The ERISA Class [12] The Krueger plaintiffs make two specific claims to establish common questions of law or fact for the ERISA class. First, plaintiffs assert the defendants discharged, under the FMP, a disproportionate number of employees nearing pension eligibility thereby interfering with their pension rights. Second, plaintiffs assert that the defendants discharged, again under the FMP, employees already eligible for service pensions, to keep them from earning additional or enhanced benefits.
Defendants respond by arguing that all but two potential class members lack standing, fail to state a claim, or assert claims subject to a valid legal defense. Defendants also categorize plaintiffs according to their different factual circumstances, i.e. some plaintiffs were eligible for a monthly pension, others were eligible but elected a lump sum payment, and still others fell short of eligibility but chose a lump sum payment in lieu of deferred pension benefits. The plaintiffs deny that the class members lack standing under ERISA and present the argument that, if the terminated employees had continued to participate in the company’s pension plan, “but for” their allegedly unlawful termination they would have standing under ERISA to challenge that termination. See Mullins v. Pfizer,

3. Typicality
[15] The Rule 23(a)(3) typicality requirement tends to merge with the commonality requirement since both serve as “guideposts for determining whether ... the class claims are so interrelated that the interests of the class members will be firmly and adequately protected.” Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. at 2370 n. 13. The same is true with respect to the Rule 23(a)(4) adequacy of representation element such that “the existence of the third and fourth prerequisites is thus influenced by [the Court’s] view of the second.” In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 164 (2d Cir.1987), cert. denied sub nom., Pinkney v. Dow Chemical Co., 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988). Accordingly, the Court considers the typicality and adequacy of representation issues in light of the strength with which plaintiffs have satisfied the commonality element of Rule 23.
[16] The typicality element of Rule 23(a)(3) requires that the claims of the representative plaintiffs be typical of those of the class.
5

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)

[The Rule] does not require that the factual background of the named plaintiff’s case be identical with that of other members of the class, but that the disputed issue occupy essentially the same degree of centrality to the named plaintiffs claim as to that of other members of the proposed class.

Bishop, 141 F.R.D. at 238 (quoting Burka v. New York City Transit Auth., 110 F.R.D. 595, 604–05 (S.D.N.Y.1986)).
[17] The Krueger plaintiffs assert that the six named representatives assert claims typical of those asserted on behalf of the potential class members. Each has HRL claims based on the alleged discriminatory application of the FMP. Each asserts ERISA claims alleging interference with pension rights also by means of the FMP. Each has an interest in demonstrating the unlawfulness of the allegedly discriminatory features of the FMP. If such unlawfulness is proven, the benefits would accrue to all members of the class.
Defendants rely heavily on the same arguments proposed to defeat commonality—arguments addressed to the merits of both the HRL and ERISA claims. As explained above, arguments on the merits simply cannot be resolved in the context of a class certification motion. The plaintiffs have laid a sufficient evidentiary foundation which, if believed, supports their allegations of common questions of law and fact. That same evidentiary basis counters defendants’ contention that plaintiffs’ claims are not typical of those of the class. Plainly, they are.5 The Court is satisfied that the representative plaintiffs’ claims are typical of those of both the HRL class and the ERISA class.

5

This is not a case like Amswiss Int’l Corp. v. Heublein,

Inc., 69 F.R.D. 663 (N.D.Ga.1975), on which

defendants rely. In Amswiss, the court found that

typicality was lacking because the “plaintiff may not

have to prove one of the critical elements of the absent

class members’ case in order to recover.” Id., 69 F.R.D.

at 668–69.

Here, by contrast, none of the Krueger representative

plaintiffs assert any alternative theories of their own,

much less a theory that requires different standards

or degrees of proof. Consequently, the concerns

addressed in Amswiss simply are not extant in the

present case.

4. Adequacy of Representation

[18] [19] The fourth and final requirement of Rule 23(a) is adequacy of representation. This requirement consists of two elements: (1) the qualification, experience and ability of plaintiffs’ attorneys; and (2) the absence of any substantial antagonism between the named plaintiffs and the class members. Gruby v. Brady, 838 F.Supp. 820, 826 (S.D.N.Y.1993). Plaintiffs’ counsel have presented affidavits attesting to their experience and qualifications, and there being no objection by defendants, the Court is satisfied that *443 plaintiffs’ attorneys are fully competent to conduct this litigation. See County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1406, 1407 (E.D.N.Y.1989), aff’d, 907 F.2d 1295 (2d Cir.1990); In re Lilco Sec. Litig., 111 F.R.D. at 672 n. 10.
[20] [21] Defendants do argue that there are conflicts among class members.6 Defendants point out that seventeen potential class members were evaluated or appraised during the FMP by five NYT employees who are also in the potential class. Defendants assert that these evaluations were used in the process of banding employees or in the appraisal of employees within the banding entities. Defendants conclude that a conflict arises because these evaluations “affected the RIF status,” (Def.Mem. Opp’n at 24), of fellow class members, putting some plaintiffs “in the position of accusing fellow class members of actions that resulted in their being terminated on account of their age.” (Id. at 9.)

6

Defendants also argue that the class representatives are

unable to finance the litigation based on the plaintiffs’

failure to disclose certain financial information. The

plaintiffs did affirm their responsibility to pay litigation

costs. (See Birnbaum Aff. dated June 19, 1995, Ex. E.)

While “[t]he ability of a class representative to defray

the cost of litigation is a relevant factor in the court’s

determination of the representative’s suitability[,]” Moll

v. U.S. Life Title Ins. Co. of New York, 113 F.R.D. 625,

632 (S.D.N.Y.1987), it is sufficient that plaintiffs state

they are willing to pay their share. Dennis v. Saks &

Co., 20 F.R.Serv.2d 994 (S.D.N.Y.1975). Absent any

contention that litigation costs will not be paid, there is

“no valid basis for questioning plaintiff [s] about [their]

financial resources.” Kamens v. Horizon Corp., 81

F.R.D. 444, 447 (S.D.N.Y.1979); see also In re AM

Int’l, Inc. Sec. Litig., 108 F.R.D. 190, 198 n. 10

(S.D.N.Y.1985). The Court is satisfied, based upon

their affidavits and depositions, that the named

plaintiffs understand and acknowledge their

responsibilities.

The Court is persuaded that the nature of the conflict raised by defendants is not even remotely likely to result in the representative plaintiffs inadequately pursuing the interests of the class. The named plaintiffs have alleged the same interests and injuries as the class. All class members, including the named plaintiffs, assert identical HRL and ERISA claims based on the implementation of
6

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)
the FMP and its allegedly discriminatory provisions. Even assuming the existence of personal animosity directed towards the five class members alleged to have taken part in evaluations and appraisals, there is nothing to indicate that these five class members, or the seventeen with whom they interacted, do not share the common claims with each other and with over 130 other potential class members.
[22] Aside from the inference defendants would have the Court draw, no evidence is proffered indicating that the named plaintiffs would not adequately represent the common interests of the class. While defendants warn of the presence of some nascent conflict between certain plaintiffs, “only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.” Kuck v. Berkey Photo, Inc., 81 F.R.D. 736, 740 (S.D.N.Y.1979) (quoting 7 Wright & Miller, Federal Practice & Procedure § 1768, at 639 (1972)). Because the HRL and ERISA claims focus on a company-wide policy, the fact that a handful of class members participated to a small degree in the evaluation or appraisal of other class members during the time the FMP was implemented is insufficient to create any appreciable friction between the interests of the representative plaintiffs and those of the class. See Gruby, 838 F.Supp. at 827 (“ ‘[C]lass certification should not be denied by speculative suggestions of potential conflicts.’ ”) (quoting Breedlove v. Tele–Trip Co., Inc., No. 91–5702, 1993 WL 284327, at *7 (N.D.Ill. July 27, 1993)). Additionally, class counsel can effectively ensure that the interests of the class are pursued and that any differences among class members do not prevent the pursuit of common claims. See County of Suffolk, 710 F.Supp. at 1417; In re Lilco Sec. Litig., 111 F.R.D. at 672 n. 10.
Accordingly, and in light of the strong presence of commonality and typicality in this case, see Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. at 2370 n. 13 (typicality and commonality “also tend to merge with the adequacy-of-representation requirement....”), the Court finds the plaintiffs have satisfied Rule 23(a)(4).

*444 B. Rule 23(b): [23] [24] The final requirement for class certification is that
one of the three types of class actions under Rule 23(b) be appropriate. Plaintiffs argue that both the HRL class and the ERISA class satisfy the requirement of Rule 23(b)(2)7
which authorizes a class action where:

7

Plaintiffs also argue that class certification is

appropriate for both the HRL and ERISA claims under

Rule 23(b)(3) which authorizes a class action where

common questions of fact or law predominate. Because

the Court grants class certification under Rule 23(b)(2),

it is unnecessary to reach this argument.

[T]he party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed.R.Civ.P. 23(b)(2). There is no question that plaintiffs have presented allegations supported by substantial evidence which, if believed, show discrimination by defendants against the entire class. See Selzer, 112 F.R.D. at 180. Given that plaintiffs seek injunctive relief, the Court finds that Rule 23(b)(2) is satisfied.
In accordance with the foregoing, the Court is satisfied that the Krueger plaintiffs have satisfied Rule 23(a) and Rule 23(b)(2) for both the HRL claims and the ERISA claims and hereby grants the motions for certification.
III.
[25] [26] [27] [28] Both the Krueger and Carroll plaintiffs seek authorization from the Court that their actions be certified to proceed as collective actions for the ADEA claims, pursuant to 29 U.S.C. § 626(b) which incorporates § 16(b) of the FLSA, which provides that:
An action to recover the liability prescribed ... may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. § 216(b). There are two conditions for maintaining a collective action. First, the named plaintiffs and the proposed members of the class must be “similarly situated.” Second, the proposed class members must consent in writing to be bound by the result of the suit, or “opt-in.” Sperling v. Hoffman–La Roche, Inc., 118 F.R.D. 392, 399 (D.N.J.), aff’d, 862 F.2d 439 (3d Cir.1988), aff’d, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). To facilitate the operation of the opt-in mechanism and further the remedial purpose of ADEA, district courts have discretion to authorize plaintiffs to send notice to prospective plaintiffs. Hoffman–La Roche Inc. v. Sperling, 493 U.S. 165, 169–70, 110 S.Ct. 482, 485–86, 107
7

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)

L.Ed.2d 480 (1989). The Krueger and Carroll plaintiffs received authorization to send notices in 1993. Krueger v. New York Tel. Co., Nos. 93 Civ. 0178, 93 Civ. 0179, 1993 WL 276058 (S.D.N.Y. July 21, 1993) (McKenna, J.). The Krueger plaintiffs now seek authorization to proceed on behalf of 157 consent signers. The Carroll plaintiffs seek authorization on behalf of five consent signers. To grant these authorizations, the Court must be satisfied, in each case, that the consent signers are similarly situated to the named plaintiffs. Heagney v. European American Bank, 122 F.R.D. 125 (E.D.N.Y.1988). “[T]here must be a demonstrated similarity among the individual ‘situations,’ ... [i.e.] some identifiable factual nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged discrimination.” Palmer v. Reader’s Digest Ass’n, 42 Fair Empl.Prac.Cas. (BNA) 212 (S.D.N.Y.1986).8

8

The parties correctly do not dispute that the “similarly

situated” standard is proper when authorizing an “opt

in” collective ADEA action under § 216(b). Heagney,

122 F.R.D at 126 n. 1 (“Section 216(b) displaces the

class action devices of Fed.R.Civ.P. 23, which are

accordingly unavailable in an ADEA case.”); see

Severtson v. Phillips Beverage Co., 137 F.R.D. 264,

265 (D.Minn.1991) (“Unlike employment

discrimination cases under Title VII, ADEA class

actions are not governed by [Rule] 23.”).

*445 [29] The “similarly situated” standard is also applied when a party seeks notice authorization in order to obtain written consent. See, e.g., Schwed v. General Electric Co., 159 F.R.D. 373 (N.D.N.Y.1995); Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674 (S.D.N.Y.1981). When the Krueger and Carroll plaintiffs were granted authorization for notice the Court found that the putative class members were similarly situated, Krueger, 1993 WL 276058, at *2, observing that:

Plaintiffs have identified two

ranking criteria that could support a

disparate impact analysis under the

ADEA which were employed in all

of the banding entities into which

plaintiffs and those similarly

situated were divided. Moreover,

alleged statements from certain

NYT employees may also support

plaintiffs’ claims. Defendants’

FMP, however diffuse its

implementation,

appears

nevertheless to have been a single

plan contemplating reduction of

defendants’ staff within a tightly

proscribed period.

Id. (emphasis added). The Court noted that defendants’

objections to notice were addressed to the merits of the claims and were misplaced on a motion seeking notice authorization. Id. Nevertheless, the Court indicated that its determination that potential class members were similarly situated was by no means final. “[E]ven if plaintiffs’ claims turn out to be meritless or, in fact, all the plaintiffs turn out not to be similarly situated, notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues in this case.” Id.
The time for further consideration has now arrived. Defendants are correct that this action is no longer at the preliminary notice stage. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–14 (5th Cir.1995) (describing inquiry at preliminary notice stage and again after discovery is largely complete). Substantial discovery has been taken. Indeed, less than six weeks remain until all discovery must be complete. The parties have submitted extensive evidentiary materials for and against class action certification. The parties positions as to whether the representative plaintiffs are similarly situated with the consent signers are based on the same affidavits and deposition citations on which the parties rely for the class action determination. For all of the reasons that the Court has already found this action should proceed as a class action, and because the representative plaintiffs have satisfied the commonality and typicality requirements of Rule 23(a)(2) and (a)(3), it is equally true that the named plaintiffs are similarly situated to the other members of the ADEA class.
The logic supporting Judge McKenna’s finding that the potential Krueger and Carroll class members were similarly situated and that sustained the granting of notice authorization remains intact on the present motion to authorize the collective action. Plaintiffs continue to contend that the new hire and recent promotee exclusions and the recent degree preference were discriminatory elements of a company-wide plan under which “the putative class members were together victims....” Sperling v. Hoffman–La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988). As explained above, the plaintiffs’ evidence, if believed, supports those allegations. Plaintiffs also contend that the FMP was “infected by discrimination,” such that class members suffered company-wide discriminatory treatment. Defendants continue to argue that the FMP did not discriminate in fact, an argument on the merits that does not refute plaintiffs’ contention that the FMP and its allegedly discriminatory components were applied to the plaintiff classes.9 Accordingly, *446 the Court finds that the consent signers in Krueger are similarly situated to the named Krueger plaintiffs and an ADEA collective action pursuant to § 216(b) is authorized. Likewise, the Court finds the consent signers in Carroll are similarly situated to the named Carroll plaintiffs and a collective action is authorized.
8

Krueger v. New York Telephone Co., 163 F.R.D. 433 (1995)

9

In a recent unpublished opinion, Judge Amon of the

Eastern District of New York denied notice

authorization and granted defendants summary

judgment in a similar case involving another NYNEX

subsidiary’s implementation of the FMP. Fazzino v.

Telesector Resources Group, 93 Civ. 485 (E.D.N.Y.

Aug. 23, 1995). The facts of Fazzino, however, are

distinguishable. First, the NYNEX subsidiary,

Telesector Resources Group (“TRG”), did not employ

the recent hire exclusion. Id. at 30 (undisputed statistics

showed recent hires were not excluded). Second, while

positive credit was given for employees who had

received a degree, “the recency of the degrees was not a

factor in determining such credit.” Id. Third, while the

Fazzino plaintiffs did allege disparate treatment based

on comments made by decisionmakers at TRG, these

allegations were unsupported by statistical evidence, id.

at 28–29 (statements alone insufficient to raise

inference of discrimination), and the comments made

by a spokesperson were not made on behalf of TRG. Id.

at 24–26. Fourth, the Fazzino ADEA class of 21

consent signers involved fewer banding entities and

permitted a definitive finding of no discriminatory

impact. The Court found that “plaintiffs’ statistical

evidence [failed] to support their contention that

defendant engaged in a pattern or practice of

discrimination.” Id. at 41.

In the present case, involving significantly more

consent signers across many more banding entities,

the defendants do not deny that the recent hire and

recent promotee exclusions were applied in the New

York Telephone RIF, although they deny there was

any impact. Nor do they deny that credit for degrees

was awarded based on recency. In fact, even

defendants’ expert recognizes that such a

company-wide criteria may be biased. (See Stoikov

Aff. dated May 1, 1995, at 5 (“Hypothetically, [the

recent degree factor] may have an adverse affect on

older employees....”).) Defendants’ main thrust is to

challenge the assertion that the application of these

two criteria were discriminatory by analyzing each of

the 69 banding entities individually. This

methodology is disputed vigorously by plaintiffs

who analyze the FMP’s effect on NYT as a whole

and offer statistics indicating that, measured on an

aggregate basis, employees over 40 were more likely

to be discharged or otherwise discriminated against.

The presence of these differences makes the Fazzino

decision inapposite here. Cf. Ulvin v. Northwestern

Nat’l Life Ins. Co., 141 F.R.D. 130 (D.Minn.1991)

(denying collective action authorization; plan

included no alleged discriminatory company-wide

provisions); Mooney v. Aramco Servs. Co., 54 F.3d

1207, 1215 (5th Cir.1995) (affirming denial of

collective action; no company-wide plan to provide “common thread unifying plaintiffs’ claims”).
IV.
In conclusion, the Court grants each of plaintiffs’ motions and orders that:
1. The Krueger plaintiffs and consent signers are authorized to proceed with their ADEA claims as a collective action under 29 U.S.C. § 216(b). Further, the Krueger HRL and ERISA classes are certified under Fed.R.Civ.P. 23(b)(2). Each class is identical to and coextensive with the ADEA class. The HRL class is defined as “all former New York Telephone employees age 40 and older who were discharged or otherwise discriminated against because of their age in the implementation of the FMP and who have given their written consent to being part of the ADEA collective action.” The ERISA class is defined as “the named plaintiffs and all other former NYT employees who were, or would have become eligible for defendants’ service pension or other additional pension benefits but who were discharged under the FMP in order to interfere with their attainment of service pension benefits or additional pension benefits, and who have given their written consent to being part of the ADEA collective action.”
2. The Carroll plaintiffs and consent signers are authorized to proceed with their ADEA claims as a collective action under 29 U.S.C. § 216(b). The Carroll plaintiffs’ motion for the Court to take supplemental jurisdiction over the HRL and ERISA claims of the five consent signers is withdrawn.
SO ORDERED.
Parallel Citations
80 Fair Empl.Prac.Cas. (BNA) 873
	  

9

 
 Krueger v. New York Telephone Co., 163 F.R.D. 446 (1995)

163 F.R.D. 446 United States District Court,
S.D. New York.
Evelyn KRUEGER, Francis J. Lupardo, Carlyle D. Forde, Walter Grabowski, Nicholas T. Bruck, and Albert J. Dwyer on Behalf of Themselves and All
Others Similarly Situated, Plaintiffs, v.
NEW YORK TELEPHONE COMPANY and Nynex Corporation, Defendants.
No. 93 Civ. 0178 (JGK). | Sept. 22, 1995.
Attorneys and Law Firms
*447 Julian Birnbaum, Suja Thomas, Vladeck, Waldman, Elias & Engelhard, P.C., New York City, for plaintiffs.
Amy Beech, Matthew Miklave, Epstein, Becker & Green, New York City, for defendants.
Opinion

*448 OPINION AND ORDER

KOELTL, District Judge.
This action is brought by six former employees of New York Telephone Company (“NYT”) claiming discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the New York Human Rights Law, Executive Law § 290 et seq. (the “HRL”), and unlawful interference with pension rights under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”).
In motions already pending before the Court, plaintiffs seek to maintain a collective opt-in action for the ADEA claims.1 One hundred and sixty-two consents have been received and plaintiffs have moved for authorization to proceed on behalf of these consent signers with respect to the ADEA claims. Plaintiffs have also moved to certify class actions under Fed.R.Civ.P. 23 for these same 162 plaintiffs with respect to both the HRL and ERISA claims.

1

Collective action is authorized under ADEA by

incorporation of the Fair Labor Standards Act, 29

U.S.C. § 216(b). References to a “class action” with

respect to the ADEA claims is for ease of reference

only and should not be construed as implying the

relevance of Fed.R.Civ.P. 23. See Heagney v. European

American Bank, 122 F.R.D. 125, 126 n. 1 (E.D.N.Y.1988) (“Section 216(b) displaces the class action devices of Fed.R.Civ.P. 23, which are accordingly unavailable in an ADEA case.”); Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 265 (D.Minn.1991) ( “Unlike employment discrimination cases under Title VII, ADEA class actions are not governed by [Rule] 23.”).
Currently before the Court is plaintiffs’ motion to bifurcate liability and damage issues under Fed.R.Civ.P. 42(b). Plaintiffs also seek a protective order against discovery defendants wish to conduct on certain consent signers. Defendants contest both motions and seek an order compelling discovery. For the reasons set forth in this opinion, plaintiffs’ motion for bifurcation is denied without prejudice, plaintiffs’ motion for a protective order is granted in part and denied in part, and defendants’ motion is granted in part and denied in part.

I.
[1] Plaintiffs move to bifurcate the liability and damages phases of this lawsuit under Fed.R.Civ.P. 42(b).2 Plaintiffs’ motion for bifurcation is plainly premature. On April 28, 1995, this Court issued an order directing the parties to schedule, commence, and complete all discovery by November 1, 1995. This date was determined at a pretrial conference after consultation with the parties as to the length of time necessary to complete all discovery in this case. The parties did not suggest that more time was needed or that a substantial amount of discovery would not be taken and simply left to a later date. The April 28, 1995 order also provided that a Joint Pretrial Order was to be submitted on or before December 8, 1995. Under this Court’s rules, motions for bifurcation are appropriate when the Joint Pretrial Order is filed.

2

Rule 42(b) provides that:

The court, in furtherance of convenience or to

avoid prejudice, or when separate trials will be

conducive to expedition and economy, may order

a separate trial of any claims, cross-claim,

counterclaim, or third-party claim, or of any

separate issue or of any number of claims, cross-

claims, counterclaims, third-party claims, or

issues, always preserving inviolate the right of trial

by jury as declared by the Seventh Amendment to

the Constitution or as given by a statute of the

United States.

Application of Rule 42(b) is within the trial court’s

discretion. Getty Petroleum Corp. v. Island Transp.

Corp., 862 F.2d 10, 15 (2d Cir.1988), cert. denied

sub nom. Getty Petroleum Corp. v. Salem Heat and

1

Krueger v. New York Telephone Co., 163 F.R.D. 446 (1995)
Petroleum Corp., 490 U.S. 1006, 109 S.Ct. 1642, 104 L.Ed.2d 157 (1989).

The motion is also premature because discovery is not yet complete. The continuing development of the factual record in this case may well affect the issues to be tried and the presentation of those issues in the Joint Pretrial Order. See Rosen v. Reckitt & Colman, Inc., No. 91 Civ. 1675 (LMM), 1994 WL 652534, at *5, 1994 U.S.Dist. LEXIS 16511, at *14 (S.D.N.Y. Nov. 17, 1994) (bifurcation is inappropriate before substantial completion of discovery). Moreover, both plaintiffs and defendants have indicated their intention to move for summary judgment. The disposition of those motions may alter or narrow the issues that remain to be tried. See *449 Contini v. Hyundai Motor Co., 149 F.R.D. 41, 41 (S.D.N.Y.1993) (motion to bifurcate denied without prejudice as premature where defendant indicated intent to file summary judgment motion).

In any event, plaintiffs’ motion to bifurcate does not begin to address the very complexities it raises. Among the questions plaintiffs fail to mention, much less resolve, are what issues will be tried in the first trial, what issues will be left to subsequent trials, and whether there should be individual trials of the claims of individual groups of plaintiffs. See, e.g., Rosen, 1994 WL 652534, at *5–7, 1991 U.S.Dist. LEXIS 16511, at *15–*20. Moreover, plaintiffs do not cite any case where a collective ADEA trial was bifurcated. Also overlooked are the procedural and substantive issues raised by the relationship between the class actions under the Human Rights Law and ERISA and the collective action under ADEA.3

3

In fact, when plaintiffs made this motion, their class

certification motions under Rule 23 and § 216(b) were

still pending. The Court has now issued an opinion and

order certifying collective and class actions for

plaintiffs. See Krueger v. New York Telephone Co., 163

F.R.D. 433 (S.D.N.Y.1995).

[2] Furthermore, plaintiffs urge that discovery be stayed pending resolution of a trial on liability issues, assuming implicitly that a bifurcation scheme of some kind will be adopted. The possibility that some portion of this case may be bifurcated for trial, or the fact that there may be more than one trial, does not adequately support plaintiffs’ request to stay discovery.
To the contrary, staying discovery at this point, given the circumstances of this case, would be both inefficient and unfair. Until now, discovery has not been stayed, severed, or in any way limited to specific issues. The parties should have been proceeding in good faith to complete all discovery by the November 1 deadline—a date selected

after the parties fully explained their anticipated need for time. In accordance with this schedule, defendants are entitled to discovery from the class members with respect to damages and liability issues. Plaintiffs do not explain why the Court should interrupt that discovery now. This is not a class consisting of thousands of absent class members, scattered throughout the country, perhaps unaware of the litigation itself. This case involves a relatively small group of 162 people, each of whom has freely chosen to participate and each of whom has relevant information with respect to the claims and defenses in this action. Having already deposed the named plaintiffs and having obtained the plaintiffs’ agreement to depose about 19 other consent signers without objection, defendants properly seek to depose an additional 14 consent signers. These 14 individuals, like all members of the class, could be deposed fully on the issues in this case to the extent information is not otherwise obtained from them, such as through answers to detailed questionnaires. Certainly this approach is more efficient and less onerous than a procedure that defers an entirely new round of unspecified discovery until some indefinite future date. Finally, defendants persuasively argue that they need discovery to be able to participate meaningfully in settlement discussions pending before the Magistrate Judge in this action. See generally Rosen, 1994 WL 652534, at *2, 1991 U.S.Dist. LEXIS 16511, at *6.
Therefore, plaintiffs’ motion for bifurcation of the liability phase of any trial from the damages phase of any trial is denied without prejudice to renewal at the time the Pretrial Order is submitted. At that time, the parties are free to move for bifurcation or suggest alternative trial management procedures, such as those discussed by Judge McKenna in Rosen.
II.
[3] Plaintiffs seek a protective order with respect to certain discovery requests defendants have made on unnamed class members and defendants seek an order compelling such discovery. Specifically, defendants seek responses to interrogatories predominately relating to damages from all members of the class and seek to depose 33 consent signers. Plaintiffs have agreed to 19 of these depositions, including the depositions of consent signers who participated in the evaluation of other consent signers. Thus, only 14 depositions *450 remain at issue. Defendants maintain that these 14 individuals were evaluated by other consent signers during the September 1992 reduction in force and would have first-hand knowledge about liability issues, such as whether they were treated in a discriminatory manner.
With respect to the interrogatories, plaintiffs contend that
2

Krueger v. New York Telephone Co., 163 F.R.D. 446 (1995)
damages discovery of individual class plaintiffs is premature and burdensome and ought to be deferred until liability has been determined. Plaintiffs also protest that such discovery is directed at individual rather than classwide issues and improper at this point in the litigation. Plaintiffs offer instead to provide information on damages from a sample of 40 to 50 class members in order to approximate class-wide damages for purposes of settlement discussions. In response, defendants point out that liability and damages issues have not yet been bifurcated and that the discovery deadline of November 1, 1995 applies to all discovery. Defendants also argue they are unable to evaluate or discuss meaningful settlement options without conducting appropriate discovery on the plaintiff class members. Finally, defendants attempt to ease the burden of answering interrogatories by offering as an alternative a 15–page questionnaire to be completed by each plaintiff class member.
Discovery of unnamed class members is neither prohibited nor sanctioned explicitly by Rules 30, 33 and 34. Nevertheless, there is authority for the use of both interrogatories and depositions against members of Rule 23 classes. And, while the defendants argue that more extensive discovery should be permitted in a collective ADEA action where class members have affirmatively opted in, the discovery sought here would be proper in any event under the standards applied in Rule 23 cases. In Robertson v. Nat’l Basketball Assoc., 67 F.R.D. 691 (S.D.N.Y.1975), one of the earliest cases to address the issue, the court examined the tensions at play in a class action brought on behalf of 400 basketball players against the National and American leagues for antitrust violations.
The use of discovery devices against nonrepresentative class members raises the troublesome conflict between the competing interests of the absent class members in remaining passive and the defendant in having the ability to ascertain necessary information for its defense.
Id., 67 F.R.D. at 699 (quoting Comment, Making the Class Determination in Rule 23(b)(3) Class Actions, 42 Fordham L.Rev. 791, 811 (1974)). After examining the cases, the court held that discovery would be appropriate because “[the class] is composed of fairly finite, readily identifiable members with not insubstantial claims who specifically authorized this litigation and who have financed it since its inception.” Id. The court then determined that “[b]efore ordering such discovery, a trial court must be assured that the requested information is actually needed in preparation for trial and that discovery devices are not used to take unfair advantage of absent

class members.” Id., 67 F.R.D at 700 (quoting Gardner v. Awards Marketing Corp., 55 F.R.D. 460, 463 (D.Utah 1972)). The court found the need for liability discovery to be sufficient and permitted defendants discovery on 75 of the 400 plaintiffs. Id. Discovery as to individual damages, however, was not appropriate because a bifurcated trial procedure had been adopted. Id.
Shortly after Robertson, the District Court for the District of Columbia elaborated the standard further.
The most important relevant circumstances are that the party seeking the discovery must demonstrate [first ] its need for the discovery for purposes of trial of the issues common to the class, [second ] that the discovery not be undertaken with the purpose or effect of harassment of absent class members or of altering the membership of the opposing class, and [third ] that the interrogatories be restricted to information directly relevant to the issues to be tried by the Court with respect to the class action aspects of the case.
United States v. Trucking Employers, Inc., 72 F.R.D. 101, 104 (D.C.D.C.1976) (citations omitted). Subsequently, the Second Circuit Court of Appeals cited Trucking Employers for the appropriateness of discovery on absent class members. See Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir.), vacated *451 on other grounds, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979); see Enterprise Wall Paper Mfg. Co. v. Bodman, 85 F.R.D. 325, 327 (S.D.N.Y.1980) (requiring “strong showing” for discovery of absent class members); see also Baldwin & Flynn v. Nat’l Safety Assoc., 149 F.R.D. 598, 600 (N.D.Cal.1993) (heavy burden for interrogatories, heavier for depositions).
With respect to the 14 depositions of the unnamed Krueger plaintiffs, defendants satisfy the three Trucking Employers factors. Defendants claim that certain absent class members participated in evaluations and appraisals of other class members and that plaintiffs have alleged those evaluations and appraisals formed the basis of discriminatory actions under the procedures and criteria of the defendants’ Force Management Plan (the “FMP”). Because plaintiffs assert that defendants manipulated and applied the FMP so as to adversely affect older employees, (see Compl. ¶ 37), the depositions defendants wish to conduct of those individuals subject to the evaluations are addressed to class-wide liability issues, thus satisfying the first factor. The second factor is met because there is no meaningful evidence that defendants
3

Krueger v. New York Telephone Co., 163 F.R.D. 446 (1995)
are attempting to harass the plaintiff class members. Plaintiffs’ counsel is quite capable of assuring there is no harassment or of seeking appropriate protection from the Court if necessary. Finally, the issues of liability on which defendants seek to depose the consent signers is a classwide issue going to the heart of the plaintiffs’ claim—that defendants administered the FMP and its allegedly violative criteria in a way that discriminated impermissibly against older NYT employees. The intended deponents are evaluatees whose observations and experiences are relevant to this issue and therefore properly the subject of defendants’ discovery. The third Trucking Employers factor is therefore met. Accordingly, plaintiffs’ motion for a protective order against the depositions of these class members is denied.
[4] With respect to defendants’ desire to serve interrogatories on all 162 class members in the form of a questionnaire, such class-wide discovery on issues of individual damages is entirely appropriate. In Kaas v. Pratt & Whitney, No 89–8343–CIV, 1991 WL 158943, 1991 U.S.Dist. LEXIS 11177 (S.D.Fla. Mar. 18, 1991), the court allowed both interrogatories and depositions of each plaintiff in a 100–member collective ADEA action. The plaintiffs asserted a disparate impact theory based on a company-wide efficiency program called the Activity Value Analysis and a disparate treatment theory supported by anecdotal and statistical evidence. The court ordered that all class members respond to the discovery requested, including interrogatories, document requests and depositions. Id., 1991 WL 158943, at *5, 1991 U.S.Dist. LEXIS 11177, at *15. In Rosen v. Reckitt & Colman Inc., No. 91 Civ. 1675, 1994 WL 652534, 1994 U.S.Dist. LEXIS 16511 (S.D.N.Y. Nov. 17, 1994) (McKenna, J.), defendants sought to depose every member of a 50–plaintiff ADEA class with respect to both liability and damages issues. Plaintiffs urged the court to bifurcate the trial as to liability and damages, and to permit discovery only on a representative sample of the plaintiff class. The court was unpersuaded by the plaintiffs’ arguments and permitted defendants to serve document requests on and depose each member of the class. Id., 1994 WL 652534, at *5, 1994 U.S.Dist. LEXIS 16511, at *15. The court found that a representative sample was inappropriate given the relatively small class size. Id., 1994 WL 652534, at *3, 1994 U.S.Dist. LEXIS 16511, at *10. The court also credited defendants’ argument that “it cannot conduct meaningful settlement negotiations until it knows its exposure, which will depend in large part on the results of individual depositions, including recent information on the mitigation of damages.” Id., 1994 WL 652534, at *2, 1994 U.S.Dist. LEXIS 16511, at *6.
The facts in the present case are similar to Kaas and Rosen. The Krueger plaintiffs bring a collective ADEA action on behalf of 162 consent signers, not significantly more than the 50 in Rosen or the 100 in Kaas. The

Krueger plaintiffs assert both disparate impact and disparate treatment theories based on a company-wide plan, analogous to the claims brought in Kaas. The Krueger defendants face difficulty participating in settlement negotiations without a reasonable basis *452 on which to measure their potential exposure, a factor favoring discovery in Rosen. The plaintiffs’ statistical expert estimated that a sample of 40 to 50 consent signers would be necessary to calculate a reliable damages estimate. (Madden Aff. dated Aug. 23, 1995, ¶ 2.) Given the relative compactness of the plaintiff class, the defendants should not be required to forego their own discovery as to the extent of their potential liability. Cf. Long v. Trans World Airlines, Inc., 761 F.Supp. 1320 (N.D.Ill.1991) (sampling appropriate for class of 3,000 and court ordered production of 2,000 questionnaires from class members submitted in other litigation). No bifurcation of liability and damages issues has been ordered, as was also the case in Rosen.
The present case exhibits additional considerations favoring discovery of the absent class members. First, defendants wish only to serve interrogatories and have not indicated a desire to depose the entire class. Second, defendants have attempted to reduce the burden on plaintiffs by providing a 15–page questionnaire designed to elicit appropriate damages information in a convenient and organized manner. Third, there is a discovery cutoff date of November 1, 1995 that applies to all discovery, including individual damages issues. Regardless of whether this trial is ultimately bifurcated in some fashion, both parties must comply with that discovery deadline, and defendants certainly have the right to conduct discovery with respect to individual damages in order to prepare for trial. These three factors and the similarity of this case to Rosen and Kaas persuade the Court to exercise its discretion in favor of permitting discovery from the absent class members.
[5] The plaintiffs argue that several particular items in the questionnaire are overbroad and burdensome. (See Pl.Motion at 11 n. 6.) These interrogatories concern the consent signers’ educational background, information about their spouses and dependents, and details of the actual costs and fees paid in this lawsuit. Defendants purport to justify some of these interrogatories on a need to assess each consent signers’ motivation to mitigate damages. This rationale does not support such overbroad and invasive discovery. Accordingly, plaintiffs’ motion for a protective order against these particular interrogatories is granted.
III.
Therefore, plaintiffs’ motion to bifurcate the trial of this
4

Krueger v. New York Telephone Co., 163 F.R.D. 446 (1995)
action is denied without prejudice to renewal. Further, the Court finds it appropriate for defendants to take the depositions of the 14 consent signers whose depositions are sought. The Court also finds it appropriate for defendants to conduct damages discovery on all of the members of the ADEA, HRL and ERISA classes by means of interrogatories and document requests, or alternatively by questionnaire in the form submitted by defendants. The Court therefore grants defendants’ motion to compel such discovery, except for the interrogatories which the Court has found overbroad and

burdensome. Plaintiffs’ motion for a protective order with respect to both the depositions and interrogatories is denied, except with respect to the specific interrogatories as to which the protective order is granted as explained above.
SO ORDERED.
	  

5

 
 Krueger v. New York Telephone Co., Not Reported in F.Supp. (1993)

1993 WL 276058 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Evelyn KRUEGER, Francis J. Lupardo, Carlyle D. Forde, Walter Grabowski, Nicholas T. Bruck, and Albert J. Dwyer on behalf of themselves and all
others similarly situated, Plaintiffs, v.
NEW YORK TELEPHONE COMPANY and Nynex Corporation, Defendants.
Bernice CARROLL, Betsy J. Bell and William F. Perkins, individually and on behalf of all other
persons similarly situated, Plaintiffs, v.
NEW YORK TELEPHONE COMPANY, a Company of the Nynex Corporation, Defendant.
Nos. 93 CIV. 0178 (LMM), 93 CIV. 0179 (LMM). | July 21, 1993.
Opinion
MEMORANDUM AND ORDER
McKENNA, District Judge.
*1 Now before the Court are the similar motions of plaintiffs in these related actions for an order pursuant to 29 U.S.C. § 216(b) (1988) directing defendants to furnish the named plaintiffs and their counsel with the names and last known residence addresses of all potential class members, authorizing notice to such individuals and proscribing the notice’s form.1
The actions, filed almost simultaneously, both involve claims arising under the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621—634 (1988) (“the ADEA”) and the New York Human Rights Law, Executive Law § 290 et. seq. (McKinney’s 1993) (“the HRL”). In addition, the Krueger action includes a claim to remedy defendants’ alleged interference with the attainment of plaintiffs’ rights to pension benefits pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq.2 Plaintiffs claim that defendant New York Telephone Company (“NYT”) unlawfully discharged or otherwise discriminated against them and others similarly situated in the implementation of the NYNEX Force Management Plan (“FMP”).

1.
Notification to others similarly situated who have not yet joined either action is, in this Court’s view, an appropriate course of action to take at this juncture in the litigation. See Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). The ADEA incorporates the enforcement provisions from the Fair Labor Standards Act; specifically, Section 216(b) provides as follows:
An action to recover the liability prescribed ... may be maintained against any employer (including a public agency) in any Federal or State Court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b).
The Supreme Court’s decision in Hoffmann clearly authorizes and, in fact, advocates that the district court exercise its discretion early in the litigation to permit discovery of the names and addresses of discharged employees to ensure that such potential plaintiffs are promptly and accurately notified. The Supreme Court noted the underlying interests in the trial court’s discretionary involvement in facilitating notice to potential plaintiffs:
A collective action allows age discrimination plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity.
Hoffmann, 493 U.S. at 170.
Defendants argument that Justice Kennedy’s concurrence in Hazen Paper Co. v. Biggins, 113 S.Ct. 1701, 1710 (1993) (Kennedy, J., concurring), “casts significant doubt
1

Krueger v. New York Telephone Co., Not Reported in F.Supp. (1993)

on whether a plaintiff may proceed, as plaintiffs attempt to do here, under a disparate impact theory of liability in an action under the ADEA,” (Defs.’ Mem. in Opp., at 3), is premature both as to this action and in general, given that the Supreme Court in Hazen specifically declined to decide whether a disparate impact theory of liability is available under the ADEA, id. at 1706, and that the Second Circuit Court of Appeals has clearly ruled that disparate impact doctrine is applicable to ADEA cases in this circuit. Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir.1992); Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1369 (2d Cir.1989), cert. denied, 494 U.S. 1026 (1990).
*2 Plaintiffs’ allegations of disparate impact are sufficient at this stage and do not undermine plaintiffs’ argument that it is appropriate to notify those “similarly situated.” Plaintiffs have identified two ranking criteria that could support a disparate impact analysis under the ADEA which were employed in all of the banding entities into which plaintiffs and those similarly situated were divided. Moreover, alleged statements from certain NYT employees may also support plaintiffs’ claims. Defendants’ FMP, however diffuse its implementation, appears nevertheless to have been a single plan contemplating reduction of defendants’ staff within a tightly proscribed period, i.e., December 1992.
Defendants contest plaintiffs’ motion by seeking to contest the merits of plaintiffs’ claims more vigorously than is necessary at this stage. Specifically, defendants seek to cast doubt on whether a definable group of “similarly situated” plaintiffs can exist here. It is beyond contention that a definable group of “similarly situated” former and present employees does exist; the Court need not evaluate the merits of plaintiffs’ claims in order to determine whether a “similarly situated” group exists. Plaintiffs need only set forth “substantial allegations that the putative class members were together victims of a single decision, policy or plan infected by discrimination.” Sperling v. Hoffmann–La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988). In this Court’s view, the “similarly situated” burden has been met here; even if plaintiffs’ claims turn out to be meritless or, in fact, all the plaintiffs turn out not to be similarly situated, notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues in this case. At the very least, plaintiffs’ detailed allegations and supporting affidavits “successfully engage [defendants’] affidavits to the contrary” for purposes of the present motion. Id. at 406. Further, as the court said in Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674 (S.D.N.Y.1981):
[T]he experiences of other employees may well be probative of the existence vel non of a discriminatory policy, thereby

affecting the merits of the plaintiffs’ own claims; and the notice machinery contemplated by the ADEA, by reaching out to potential plaintiffs, may further the statute’s remedial purpose.
Id. at 676.
The Court thus decides that defendants must provide plaintiffs with the names and last-known residences of those putative plaintiffs who have not yet joined either the Carroll or the Krueger actions.3 During oral argument, all parties were in apparent agreement that approximately eighty individuals had not yet opted in to either action, but might be eligible to do so.4 These approximately eighty individuals and any others falling within the group of persons similarly situated will be notified under the guidelines set out by the Court below.
2.
*3 In accordance with Hoffmann, the Court turns now to the form and content of the notice it has ordered which is to be approved by the Court prior to mailing in order that present and after-the-fact disputes between counsel as to form and manner of consent may be eliminated. Hoffmann, 493 U.S. at 170. One notice is to be mailed to possible plaintiffs describing both actions. The notice shall include the following information: (1) a brief identification of each action (including class definitions arrived at as set forth in footnote 4, supra ); (2) any fees or advances a plaintiff would be obligated to pay at any stage of the litigation; (3) that the Carroll action is limited to plaintiffs living in the New York City metropolitan area; (4) the number of individuals who have submitted signed consent forms in each action as of the date of the mailing; (5) that both actions include claims under the HRL; (6) that only the Krueger action includes an ERISA claim; (7) that the Court has expressed no opinion as to the merits of the ADEA, HRL or ERISA claims; (8) that the individual is free to join either action (subject to the geographic limitations of Carroll ), no action, or to pursue an individual claim should he or she wish to do so; and (9) that if the individual signs the consent form for either action that he or she will be bound by the result.
For the foregoing reasons, the Krueger plaintiffs motion is granted and the Carroll plaintiffs motion is granted in part and denied in part. Defendants are ordered to release the names and addresses described above within 15 days of the Court’s approval of a class definition (see, footnote 4, supra ). Defendants’ counsel will draft a notice of the form and content described above (including an opt in form). Defendants’ counsel will submit the proposed
2

Krueger v. New York Telephone Co., Not Reported in F.Supp. (1993)

notice to plaintiffs’ counsel within 10 days of the Court’s approval of a class definition; plaintiffs’ counsel will submit the proposed notice with their respective comments to the Court within 7 days of receipt of the proposed notice drafted by defendants. The Court will then determine and approve the final form and content of the notice.

SO ORDERED.

1

The motions filed in the two actions are substantially

similar except that in Carroll plaintiffs also request

class certification pursuant to Fed.R.Civ.P. 23 and joint

notice with Krueger to all parties who have previously

opted in to either case (as distinct from notice only to

those “similarly situated” who have not opted in to

either action). The Carroll plaintiffs have since

declined to press that part of their motion relating to

class certification. Insofar as the motion in Carroll

relating to form of notice differs from that in Krueger,

the Court’s disposition of the common aspects of the

motions will, in effect, determine all issues raised as

part of both motions.

2

Fed.R.Civ.P. 23, which generally governs class actions

in federal court, is not applicable to plaintiffs’ ADEA

claims. As discussed infra, ADEA actions require

parties to opt in whereas a pendent state law claim,

such as the HRL claim, must be certified under Rule 23

which requires that a class member is a party unless he

or she affirmatively “opts out” of the suit. At some

future date, the Court may be called upon to decide

whether to certify classes for the HRL and/or the

ERISA claims pursuant to Fed.R.Civ.P. 23. Plaintiffs

apparently concede that if an HRL class is certified, it

should be limited to those employees who join the

ADEA collective action. (Pls.’ Mem. in Support

(Krueger), at 2 n. 2.) See Robinson v. Sizes Unlimited,

Inc., 685 F.Supp. 442, 445–46 (D.N.J.1988)

(determining that appropriate course of action where

pendent jurisdiction over state law claims is asserted in

ADEA collective action is to limit the class certified for

the state law claim to ADEA class members who could

then choose to opt out of the state law based class

action). The Court need not decide at this point whether it will also limit the ERISA class action to those individuals who opted into the ADEA action; clearly, the issues of pendent jurisdiction relevant to the HRL claims are not present in relation to the ERISA action.

3

The Court stresses that no notice is to be sent to those

parties who have already signed consents to be included

in either action.

4

Accordingly, the Court assumes that the parties can

agree as to an appropriate procedure for defendants to

release to plaintiffs the names and last known

residences of those individuals aged 40 or over,

employed as managers or in a managerial capacity, who

were involuntarily terminated, discharged, demoted,

reduced in pay, forced to retire, furloughed or laid off

from employment by NYT as part of the FMP in

December 1992.

Since counsel for plaintiffs in both Krueger and

Carroll apparently agreed at oral argument that

(geographical limitations and allegations relating to

ERISA apart) their class definitions are coterminous

in substance, such counsel are to confer within 10

days of the date of this Order and attempt to agree to

a precise class definition. That failing, such counsel

will, within 15 days of the date of this Order, submit

their competing definitions and supporting

justifications to the Court. Any definition must be

approved by the Court, even if arrived at by

agreement between plaintiffs’ respective counsel.

	  

3

 
 Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 1 of 14
CLOSED, LEAD
U.S. District Court United States District Court for the Southern District of New York (Foley
Square) CIVIL DOCKET FOR CASE #: 1:93−cv−00178−JGK−DFE

Krueger, et al v. New York Telephone C, et al Assigned to: Judge John G. Koeltl Referred to: Magistrate Judge Douglas F. Eaton Demand: $0 Member case: (View Member Case) Cause: 29:626 Job Discrimination (Age)
Special Master
Dean John Feerick

Date Filed: 01/13/1993 Date Terminated: 01/28/1997 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Evelyn Krueger

represented by Judith P. Vladeck Vladeck, Waldman, Elias &Engelhard, P.C. 1501 Broadway, Suite 800 New York, NY 10036 (212) 354−8330 LEAD ATTORNEY

Plaintiff Francis J. Lupardo

represented by Judith P. Vladeck (See above for address) LEAD ATTORNEY

Plaintiff Carylye D. Forde

represented by Judith P. Vladeck (See above for address) LEAD ATTORNEY

Plaintiff Walter Grabowski

represented by Judith P. Vladeck (See above for address) LEAD ATTORNEY

Plaintiff Nicholas T. Bruck

represented by Judith P. Vladeck (See above for address) LEAD ATTORNEY

Plaintiff
Albert J. Dwyer on behalf of themselves and all others similarly situated TERMINATED: 10/02/1996

represented by Judith P. Vladeck (See above for address) TERMINATED: 10/02/1996 LEAD ATTORNEY

V. Defendant New York Telephone Company

represented by Matthew Thaddeus Miklave Epstein, Becker &Green, P.C. (New York) 250 Park Avenue New York, NY 10177

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 2 of 14

212−351−4663 Fax: 212−661−0989 Email: MMiklave@ebglaw.com LEAD ATTORNEY

Susan Schenkel−Savitt Winston &Strawn 200 Park Avenue New York, NY 10166−0077 (212) 294−4700 Email: ssavitt@winston.com LEAD ATTORNEY

Defendant NYNEX Corporation

represented by Matthew Thaddeus Miklave (See above for address) LEAD ATTORNEY

Susan Schenkel−Savitt (See above for address) LEAD ATTORNEY

Date Filed 01/13/1993 01/14/1993 02/03/1993 02/26/1993 03/15/1993
03/15/1993
03/31/1993 04/06/1993

# Docket Text
1 COMPLAINT filed; Summons issued and Notice pursuant to 28 U.S.C. 636(c); FILING FEE $ 120.00 RECEIPT # 183708 (sd) (Entered: 01/14/1993)
2 Case Information Statement Addendum and Case Designation to a Magistrate Judge filed. Purs. to statement, it is suggested that the case be classified as complex. Case is designated to Magistrate Judge Lee. (sd) (Entered: 01/14/1993)
3 STIPULATION and ORDER, reset answer due for 4/5/93 for NYNEX, for New York Telephone Co....So Ordered. ( signed by Judge Peter K. Leisure ). (sc) (Entered: 02/04/1993)
Pre−trial conference held by PKL (mk) (Entered: 03/02/1993)
4 NOTICE OF MOTION by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members , and authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice , Return date 4/5/93 (mk) (Entered: 03/16/1993)
5 MEMORANDUM by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer in support of [4−1] motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice (mk) (Entered: 03/16/1993)
6 STIPULATION and ORDER, reset answer due for 4/19/93 for NYNEX, for New York Telephone C ( signed by Judge Peter K. Leisure ). (mk) (Entered: 03/31/1993)
7 STIPULATION and ORDER, Response to motion reset to 4/8/93 [4−1] motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, reset to 4/8/93 [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice , Reply to Response to Motion reset to 4/19/93 [4−1] motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, reset to 4/19/93 [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice , Return date reset to Return date reset to 4/19/93 [4−1]

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 3 of 14

04/08/1993
04/09/1993 04/13/1993
04/15/1993 04/20/1993 04/22/1993
04/27/1993 04/27/1993 04/27/1993 04/27/1993 04/27/1993 04/27/1993 04/28/1993 04/30/1993 04/30/1993 04/30/1993

motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, Return date reset to 4/19/93 [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice ( signed by Judge Peter K. Leisure ). (cd) (Entered: 04/06/1993)
8 Filed Memo_Endorsement on letter by Mattew T. Miklave, dated 4/6/93, to Judge McKenna re: request an extension of time to file their Opposition and suggest the matter be addressed by the parties on April 9.... Granted. So Ordered: ( signed by Judge Lawrence M. McKenna ) (ys) (Entered: 04/14/1993)
Pre−trial conference held before Judge McKenna. (ys) (Entered: 04/13/1993)
10 MEMORANDUM AND ORDER,... Plaintiffs are to file all motions regarding the collective nature of these actions or for class certification by April 16, 1993; , and The Court will hear oral argument and hold a conference on May 21, 1993 at 9:30 a.m. , and Pending the conference to be held on May 21, 1993, all parties in both cases shall serve copies of all papers on all other parties in both cases. , and Pending the conference to be held on May 21, 1993, ....This order does not constitute a consolidation of these cases. All issues regarding complete or partial consolidation are reserved. So Ordered: ( signed by Judge Lawrence M. McKenna ); Copies mailed (ys) (Entered: 04/16/1993)
9 Notice of reasgmnt _ to Judge Lawrence M. McKenna Copy of notice and judge's rules mailed to Attorney(s) of record: Judith P. Vladeck . (jl) (Entered: 04/15/1993)
11 STIPULATION and ORDER, reset answer due for 4/23/93 for NYNEX, for New York Telephone C. So Ordered: ( Signed by Judge McKenna). (ys) Modified on 04/21/1993 (Entered: 04/21/1993)
12 Filed Memo_Endorsement on letter by Judith P. Vladeck, dated 4/16/93, to Judge McKenna re: We believe that it was intended that paragraph one read: "Plaintiffs are to file all motions for notification of potential members of ADEA collective action by April 16, 1993...." So Ordered: ( signed by Judge Lawrence M. McKenna ) (ys) (Entered: 04/26/1993)
13 NOTICE by New York Telephone C, NYNEX to take deposition of Albert J. Dwyer on 6/15/93 at 10:00; subpoena(s) issued. (ys) (Entered: 04/29/1993)
14 NOTICE by New York Telephone C, NYNEX to take deposition of Walter Grabowski on 6/4/93 at 10:00; subpoena(s) issued. (ys) (Entered: 04/29/1993)
15 NOTICE by New York Telephone C, NYNEX to take deposition of Carlyle D. Forde on 6/9/93 at 10:00; subpoena(s) issued. (ys) (Entered: 04/29/1993)
16 NOTICE by New York Telephone C, NYNEX to take deposition of Francis J. Lupardo on 6/10/93 at 10:00; subpoena(s) issued. (ys) (Entered: 04/29/1993)
17 NOTICE by New York Telephone C, NYNEX to take deposition of Evelyn Krueger on 6/3/93 at 10:00; subpoena(s) issued. (ys) (Entered: 04/29/1993)
18 NOTICE by New York Telephone C, NYNEX to take deposition of Nicholas T. Bruck on 6/18/93 at 10:00; subpoena(s) issued. (ys) (Entered: 04/29/1993)
Pre−trial conference held before Judge McKenna on 4/28/93. (ys) (Entered: 04/29/1993)
19 ANSWER to Complaint by New York Telephone C, NYNEX by attorney Susan Schenkel−Savitt for defendant NYNEX (ys) (Entered: 05/04/1993)
20 Rule 9 certificate filed by New York Telephone C, NYNEX. (see 93 cv 179). (ys) Modified on 05/06/1993 (Entered: 05/04/1993)
21 AFFIDAVIT of Lea P. Davies Re: in Support of Defendants' Memorandum of Law in Opposition to Plaintiffs; Motion to Notivy and Certify the Putative "ADEA Classes" in Krueger, et al. V. New York Telephone Co., 93 civ. 178(LMM) and Carroll, et al. v. New York Telephone Co., 93 civ. 179 (LMM). (ys) (Entered: 05/04/1993)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 4 of 14

04/30/1993 04/30/1993
05/06/1993
05/14/1993
05/14/1993
05/14/1993
05/19/1993 06/10/1993 06/29/1993 06/29/1993 07/01/1993 07/14/1993 07/21/1993

22 AFFIDAVIT of Judith Stoikov, Ph.D. (ys) (Entered: 05/06/1993)
23 MEMORANDUM by New York Telephone C, NYNEX in opposition to [4−1] motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice (ys) (Entered: 05/06/1993)
24 Filed Memo_Endorsement on letter by Debra L. Raskin, dated 5/5/93, to Judge McKenna re: extending time...request that the Court advise us if our understanding is correct at the time that the Carroll plaintiffs' request is addressed. Time to file reply papers is Krueger and Carroll extended to 5/14/93. So Ordered: ( signed by Judge Lawrence M. McKenna ) (ys) (Entered: 05/07/1993)
25 REPLY MEMORANDUM by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer re: in Support of [4−1] motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice (ys) (Entered: 05/19/1993)
26 AFFIDAVIT of Judith P. Vladeck Re: in Support of [4−1] motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &potential class zmembers with respect to the notice (ys) (Entered: 05/19/1993)
27 CERTIFICATE OF SERVICE by Michael B. Ranis... that on May 14, 1993, I caused to be served by hand a copy of the plaintiffs' Reply Memorandum in Support of their motion to Notify the ADEA Class, and Affidavit of Judith P. Vladeck upon attorneys for defendants: Ronald Green, Esq., Epstein, Becker &Green P.C., 250 Park Avenue, New York, New York 10177 and Leonard N. Flamm, Esq., 880 Third Avenue, New York, New York 10017. (ys) (Entered: 05/19/1993)
28 Filed Memo_Endorsement on letter by Ronald M. Green, dated 5/18/93, to Judge McKenna re: reset oral argument set for 9:15 6/29/93. So Ordered: ( signed by Judge Lawrence M. McKenna ) (ys) (Entered: 05/24/1993)
Pre−trial conference held before Judge McKenna on 6/10/93. (ys) (Entered: 06/14/1993)
29 NOTICE OF MOTION by New York Telephone C, NYNEX for Matthew T. Miklave to appear pro hac vice , Return date 7/13/93 (ys) (Entered: 06/29/1993)
30 Filed Memo_Endorsement on letter by Mary Beth Hynes, dated 6/24/93, to Judge McKenna re: that the Court permit me to be admitted pro hac vice.... Granted. So Ordered: ( signed by Judge Lawrence M. McKenna ) (ys) (Entered: 06/30/1993)
31 Memo endorsed on copy of motion; granting [29−1] motion for Matthew T. Miklave to appear pro hac vice. So Ordered: ( signed by Judge Lawrence M. McKenna ); Copies mailed. (ys) Modified on 07/02/1993 (Entered: 07/02/1993)
Pre−trial conference held (cd) (Entered: 07/28/1993)
32 MEMORANDUM &ORDER granting [4−1] motion for an order directing defts to provide the names, addresses &other identifying information of all potential pltff class members, granting [4−2] motion authorizing notice to such individuals; permitting communication between pltffs' counsel &class zmembers with respect to the notice, the Carroll pltffs motion is granted in part &denied in part , Defts are ordered to release the names &addresses described above within 15 days of the Court's approval of a class definition , Deft's counsel wil draft a notice of the form &content described above , Pltffs counsel will submit a proposed ntc. with their respective comments to the Court within 7 days of receipt of te proposed notice drafted by defts ( signed by Judge Lawrence M. McKenna ); Copies mailed (mk) (Entered: 07/23/1993)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 5 of 14

09/20/1993 09/27/1993 11/01/1993 11/24/1993 06/07/1994 06/07/1994 01/11/1995
01/11/1995
01/11/1995
02/28/1995 03/24/1995
03/28/1995 03/28/1995

33 Transcript of record of proceedings filed for dates of 7/14/93 (rag) (Entered: 09/20/1993)
34 Filed Memo_Endorsement on letter dated 9/22/93, defts would be willing to submit the proposed response by close of business on 9/24/93 to plntfs comments regarding the proposed class notice ( signed by Judge Lawrence M. McKenna ) (cd) (Entered: 09/29/1993)
35 STIPULATION and ORDER, regarding confidential information during discovery ( signed by Judge Lawrence M. McKenna ). (cd) (Entered: 11/02/1993)
36 Filed Memo_Endorsement on letter dated 11/23/93, that the attached notice is approved ( signed by Judge Lawrence M. McKenna ) (cd) (Entered: 12/01/1993)
37 ORDER, consolidating cases; 93 cv 178 with 93cv179 and 93cv3606 ( signed by Judge Lawrence M. McKenna ); Copies mailed (cd) (Entered: 06/22/1994)
Consolidated Lead Case (cd) (Entered: 06/22/1994)
38 NOTICE OF MOTION by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). With affidavits of Nicholas T. Bruck, Evelyn Krueger, Steven Hering, Henry Ritz, Francis J. Lupardo, Peter Donahue, Melody R. McGovern, Bernard F. Flanagan, Thomas J. Neville, Stephen Kaczmar, Patricia A. Walbroehl, Paula Behm, Janice Madden &Ronald G. Dunn. Return date 2/10/95 @2:00. (Also filed in #93cv179 LMM) (lam) Modified on 01/13/1995 (Entered: 01/13/1995)
39 MEMORANDUM by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer in SUPPORT of [38−1] motion to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). (also filed in #93cv179 LMM) (lam) Modified on 01/13/1995 (Entered: 01/13/1995)
40 AFFIDAVIT in SUPPORT of Judith P. Vladeck, atty for by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer Re: [38−1] motion to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). (also filed in #93cv0179 LMM) (lam) (Entered: 01/13/1995)
41 Notice of reasgmnt _ to Judge John G. Koeltl Copy of notice and judge's rules mailed to Attorney(s) of record: Matthew T. Miklave, Susan Schenkel−Savitt, Judith P. Vladeck . (dg) (Entered: 03/06/1995)
42 Filed Memo_Endorsement on letter dated 3/8/95, Response to motion [38−1] motion to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). extended 30 days; and for 15 days in response in the Jackson and Hammil cases...the Court will review all pending motions at a conference to be scheduled... ( signed by Judge John G. Koeltl ) (cd) (Entered: 03/27/1995)
43 AFFIDAVIT of Judith P. Vladeck (pl) (Entered: 03/31/1995)
44 NOTICE by New York Telephone Company, NYNEX to take deposition upon oral examination of Janice Fanning Madden on 4/12/95, 3:00 p.m. at the offices of Epstein Becker &Green, P.C., 250 Park Avenue, 14th Floor, New York, NY 10177. (ae) (Entered: 04/04/1995)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 6 of 14

04/14/1995
04/20/1995 04/21/1995 05/03/1995
05/03/1995
05/03/1995 05/05/1995
05/05/1995 05/22/1995 05/22/1995 05/24/1995
05/24/1995
05/24/1995 05/24/1995

45 AFFIDAVIT of Norman Mednick, atty for the Carroll pltffs in the consolidated actions Re: to inform the Court about additional individuals who have consented to join this action since 1/13/93, when opt−in Consent to Join forms were last submitted. (Also docketed in case #93cv0179 &#93cv3606). (lam) (Entered: 04/21/1995)
46 Filed Memo_Endorsement on letter dated 4/13/95, pretrial conference for 5:00 4/21/95 ( signed by Judge John G. Koeltl ) (cd) (Entered: 04/24/1995)
Pre−trial conference held (jr) (Entered: 05/09/1995)
47 ORDER denying [38−1] motion to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). ( signed by Judge John G. Koeltl ); Copies mailed (jr) (Entered: 05/09/1995)
48 Filed Memo−Endorsement on letter from Ronald M. Green to Judge Koeltl dated May 1, 1995, denying defendants' application to submit a responsive brief in excess of 35 pages , Response to motion for class certification reset to 5/5/95; reply to esponse to motion for class certification due 6/19/95 ( signed by Judge John G. Koeltl ) (jr) (Entered: 05/09/1995)
51 ORDER, set discovery due for 11/1/95 , and set pretrial order due for 12/8/95 , and set pretrial conference for 12/22/95 ( signed by Judge John G. Koeltl ); Copies mailed (jr) (Entered: 05/09/1995)
49 Filed Memo−Endorsement on letter to Judge Koeltl from Ronald M. Green dated 5/2/95, In Re: writing to request that the Court reconsider its denial of our application to submit a responsive brief in excess of 35 pages.....Application for rearguement denied. No new matters are presented. See Rule 3(j) of the SDNY Civil Rules. Deft had no right simply to ignore the limits or pages in briefs. Moreover, there is no excuse for not having made a timely request in the first instance, or for having failed to ever checked how the Court deposed of this application. The Court has provided additional time to submit a brief with its proper page lengths. ( signed by Judge John G. Koeltl ) (kg) (Entered: 05/09/1995)
50 Order that the case be referred to the Clerk of Court for assignment to a Magistrate Judge for settlement ( signed by Judge John G. Koeltl ) Referred to Magistrate Judge Barbara A. Lee applies to 93cv 179; 93cv3606; 94cv3272; 94cv2208, as well (cd) (Entered: 05/09/1995)
52 Documents redacted pursuant to prividege or on grounds of non−responsiveness. (ae) (Entered: 05/25/1995)
53 Documents withheld pursuant to a claim of privilege. (ae) (Entered: 05/25/1995)
54 AFFIDAVIT in opposition of Ronald M. Green by New York Telephone C, NYNEX Re: [38−1] motion to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). (ls) (Entered: 05/25/1995)
55 MEMORANDUM by New York Telephone C, NYNEX in opposition to [38−1] motion to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). (ls) (Entered: 05/25/1995)
56 AFFIDAVIT in support of Judith Stoikov by New York Telephone C, NYNEX Re: [55−1] opposition memorandum (ls) (Entered: 05/25/1995)
57 SUPPLEMENTAL MEMORANDUM by New York Telephone C, NYNEX in opposition to [38−1] motion to certify class action purs to FRCP 23 the claims purs to NY Human Rights Law, Exec. Law 290 et seq. &the Employee Retirement

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 7 of 14

05/30/1995
05/31/1995 06/02/1995 06/05/1995 06/13/1995 06/19/1995 06/19/1995 06/19/1995 06/19/1995 06/19/1995 06/26/1995 06/26/1995 06/28/1995 06/30/1995 06/30/1995

Income Sec. Act of 1974, 29 U.S.C. 1001 et seq., &declare that their ADEA claims may be maintained as a collective action purs to the Fair Labor Standards Act, 29 U.S.C. 216(b). (ls) Modified on 05/25/1995 (Entered: 05/25/1995)
58 Filed Memo_Endorsement on letter by Amy J. Beech to Magistrate Judge Lee dated 5/25/95, Atty Beech is directed to notify all other counsel by fax machine. July 5 is not an available date. Counsel are directed to see up a telephone conference with the undersigned for Tuesday, 5/30/95 or Wednesday, 5/31/95 by telephoning my Courtroom depty Helen Lewis at 637−0108. SO ORDERED: ( signed by Magistrate Judge Barbara A. Lee ) (ae) (Entered: 05/31/1995)
60 NOTICE OF MOTION by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer to proceed as a collective action , Return date 6/21/95 (ae) (Entered: 06/06/1995)
59 Filed Memo_Endorsement on letter by Ronald M. Green to Magistrate Judge Koeltl dated 6/2/95, Reset settlement conference for 10:00 6/26/95. Pre−conference submissions are due no later than 4 p.m. 6/22/95. SO ORDERED: ( signed by Magistrate Judge Barbara A. Lee ) (ae) (Entered: 06/06/1995)
61 ORDER, the cases have already been referred to MJ Lee for settlement discussions and no reference will be made for the resolution of discovery disputes ( signed by Judge John G. Koeltl ); Copies mailed (cd) (Entered: 06/07/1995)
62 Order of dismissal of Jay C. Johnson with prejudice from the above−captioned lawsuit. SO ORDERED: ( signed by Judge John G. Koeltl ) (ae) (Entered: 06/19/1995)
63 REPLY MEMORANDUM by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer IN SUPPORT OF pltffs' motion for class certification (ls) (Entered: 06/22/1995)
64 AFFIDAVIT in support of Julian R. Birnbaum by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer Re: [63−1] reply memorandum (ls) (Entered: 06/22/1995)
65 AFFIDAVIT of Mia M. Meloni by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer Re: Affvt. of Frank J. Landy, Ph.D sworn to 5/1/95, and documents which were produced by defts. (ls) (Entered: 06/22/1995)
66 AFFIDAVIT of Janice Fanning Madden by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer Re: Affdvt. of Judith Stoikov, sworn to 5/19/95 and submitted by defts in this action (ls) (Entered: 06/22/1995)
67 AFFIDAVIT of Janice Fanning Madden by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer (ls) (Entered: 06/22/1995)
Settlement conference held before Magistrate Judge Lee. (rag) (Entered: 06/27/1995)
Settlement conference held before Magistrate Judge Lee. (rag) (Entered: 06/28/1995)
69 REPLY MEMORANDUM by The Carroll Pltff's IN FURTHER SUPPORT of their motion to procees as a collective action (ls) (Entered: 07/05/1995)
68 AFFIDAVIT of Walter Grabowski Re:... his understanding that he as well as the other class representatives, are responsible for the costs associated with this ligigation − and have conributed $500 towards the costs of the litigation. (djc) (Entered: 06/30/1995)
70 AFFIDAVIT of Evelyn Krueger Re: ...her understanting that she, as well as the other class representatives, are responsible for the costs associated with this litigation. She has contributed $500 towards the costs of the litigation. (lam) (Entered: 07/10/1995)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 8 of 14

06/30/1995 08/24/1995 08/24/1995 08/24/1995
08/25/1995 08/25/1995
08/25/1995 08/28/1995 08/28/1995
10/02/1995 10/02/1995
12/21/1995
12/21/1995 12/28/1995
01/18/1996 01/18/1996 01/18/1996

71 AFFIDAVIT of Janice Fanning Madden Re: [56−1] affidavit (ls) (Entered: 07/11/1995)
72 AFFIDAVIT of Janice Fanning Madden by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer Re: (djc) (Entered: 08/31/1995)
73 NOTICE OF MOTION by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer for protective order , and for Bifurcation (djc) (Entered: 08/31/1995)
74 AFFIDAVIT in support of julian R. Birnbaum by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer Re: [73−1] motion for protective order, [73−2] motion and for Bifurcation (djc) (Entered: 08/31/1995)
75 MEMORANDUM by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer in OPPOSITION to defts' Motion to Compel Discovery. (lam) (Entered: 08/31/1995)
76 AFFIDAVIT of Janice Fanning Madden, economist (who ananalyzes compensation patterns) by Evelyn Krueger, Francis J. Lupardo, Carylye D. Forde, Walter Grabowski, Nicholas T. Bruck, Albert J. Dwyer Re: NYNEX Compensation. (lam) (Entered: 08/31/1995)
77 MEMORANDUM OF LAW by New York Telephone C, NYNEX in support of Motion to Compel Discovery. (djc) (Entered: 09/01/1995)
78 REPLY MEMORANDUM by New York Telephone C, NYNEX re: [73−1] motion for protective order, [73−2] motion and for Bifurcation (ls) (Entered: 09/06/1995)
79 Case Management Plan in a Standard or Complex Case: 1. Parties shall file simultaneous briefs in the form of cross motions to compel or applications for protective orders with respect to outstanding discovery requested form members of the purported class and consent signers. 2. Such briefs shall be served by 8/23/95, with simultaneous replies served by 8/25/95. SO ORDERED: ( signed by Judge John G. Koeltl ) (ae) (Entered: 09/07/1995)
80 MEMORANDUM OPINION # 75505 denying [73−2] motion and for Bifurcation granting [73−1] motion for protective order; see document ( Signed by Judge John G. Koeltl ); Copies mailed. (cd) (Entered: 10/03/1995)
81 MEMORANDUM OPINION # 75504, the Krueger plntfs seek to certify a class action withe respect to both the state HRL and ERISA claims, and authorize a collective action with respect to their ADEA claims... ( Signed by Judge John G. Koeltl ); Copies mailed. (cd) (Entered: 10/03/1995)
82 ORDER REFERRING CASE to Dean John Feerick of Fordham Law School as a special master in these matters for the purposes of assisting the parties in settlement discussions. The master's compensation shall be paid by the parties equally. SO ORDERED: ( signed by Judge John G. Koeltl ) (ae) (Entered: 12/26/1995)
83 ORDER, discovery due for 1/19/96 , motion filing deadline for 2/9/96 , pretrial order due for 3/1/96 , trial ready deadline 3/8/96; See document for other deadlines ( signed by Judge John G. Koeltl ); Copies mailed (cd) (Entered: 12/26/1995)
84 Filed Memo_Endorsement on letter dated 12/15/95, Dr. Stoikov's supplemental report is to be served by 1/5/96 , plntf may take Dr. Stoikov's deposition after she returns and before 1/30/96 ( signed by Judge John G. Koeltl ) (cd) (Entered: 12/29/1995)
85 ORDER, Ana Maria Cerrudo is dismissed with prejudice from the above−captioned lawsuit. ( signed by Judge John G. Koeltl ); Copies mailed (kg) (Entered: 01/19/1996)
Case closed (kg) (Entered: 01/19/1996)
Case reopened (closed in error) (kg) (Entered: 11/13/1996)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 9 of 14

02/02/1996 02/02/1996 02/07/1996
02/07/1996 02/20/1996 02/20/1996 02/20/1996 02/23/1996 02/26/1996 02/26/1996

86 Filed Memo_Endorsement on letter by Amy J. Becch to Judge Koeltl dated 1/25/96, The requirement to produce all documents intended to be used as trial exhibits by 3/8/96 does not extend to charts and other graphic material for illustrative purposes which are prepared for litigation. The parties should agree on a procedure and timetable for litigation and review to permit mutual verification. SO ORDERED: ( signed by Judge John G. Koeltl ) (ae) (Entered: 02/05/1996)
87 Filed Memo_Endorsement on letter dated 1/22/96, pretrial order due for 1/23/96 ( signed by Judge John G. Koeltl ) (cd) (Entered: 02/05/1996)
88 ORDER, set discovery, including experts due for 3/8/96 ; The deadline for serving &filing dispositive motions is 3/29/96 ; Defts will immediately produce all material used....by their experts to the extent not previously provided ; Pltffs will produce all "damage questionnaires" by 1/19/96 ; By 1/26/96 defts will provide pltffs' counsel with a list of those to be deposed by phone to be conducted bet. 1/29/96 &2/16/96 ; Pltffs to serve any rebuttal reports to Dr. Perl or Dr. Landy's reports on or before 2/9/96 &depositions of rebuttal experts by 2/23/96 ; Parties to designate any compensatory damages expert by 2/2/96 and serve any report from that expert by 2/9/96, Depositions of experts by 2/16/96 ; Parties to designate any rebuttal compensatory damages expert by 2/16/96, to serve rebuttal report from expert by 3/1/96 and experts to be available for deposition on or before 3/8/96 ; Parties will produce all documents intended for use as trial exhibits by 3/8/96 ; The pltffs reserved the right to make any applications in connection with these examinations. ( signed by Judge John G. Koeltl ) Copies mailed (lam) (Entered: 02/09/1996)
89 Filed Memo_Endorsement on letter dated 2/7/96, Response to motion to dismiss by 2/16/96 for plntfs ( signed by Judge John G. Koeltl ) (cd) (Entered: 02/14/1996)
90 ORDER, dismissing John W. Erdmann with prejudice from the above−captioned lawsuit. ( signed by Judge John G. Koeltl ); Copies mailed (kg) (Entered: 02/21/1996)
91 Filed Memo−Endorsement on letter from Debra L. Raskin, atty for Krueger pltffs dated 2/15/96, informing the Court of developments re interrogatories....THE COURT WILL RESOLVE ANY OPEN ISSUES AFTER 2/21/96. THE PARTIES ARE ENCOURAGED TO RESOLVE THEIR DIFFERENCES. SO ORDERED. KOELTL, J. (signed by Judge John G. Koeltl ) (lam) (Entered: 02/22/1996)
92 Filed Memo_Endorsement on letter by Debra L. Raskin, dated 2/14/96, "Granting" request for plaintiffs to have at least two weeks following the completion of depositons to submit the rebuttals... ..So Ordered....( signed by Judge John G. Koeltl ) (pl) (Entered: 02/22/1996)
93 ORDER, William Lee is dismissed with prejudice from the above−captioned aciton purs. to FRCP 37(b)(2)(C) for failure to produce discovery, and purs. to FRCP 41(b) for failure to submit any substantive response to the application to dismiss explaining his failure to comply with discovery obligations or expressing any desire to continued with this action. ( signed by Judge John G. Koeltl ); Copies mailed (kg) (Entered: 02/26/1996)
94 Filed Memo_Endorsement on letter dated 2/20/96, the parties should agree on an exchange of damages charts; if the parties require a court−ordered date, they should ask for a telephone conference ( signed by Judge John G. Koeltl ) (cd) (Entered: 02/27/1996)
95 ORDER, reset discovery due for 3/15/96 , set service deadline for dispositive motions remain 3/29/96.... , ' Defendants shall be permitted to conduct no more than thirty−four (34) follow−up telephone depostions of no longer than thirty(30) minutes each with respect to emotional distress damages to the extent necessary to clarify or supplement any answers or to follow−up on incomplete answers... , Defendants shall be permitted to serve additonal written questions with respect to economic damages to the extent necessary to clarfy or supplement any answers or to floow−up on incomplete answers...... , Plaintiffs shall serve any rebuttal reports to the reports of Mrs. Perl and Landy on or before 2/16/96, and any deposition of the rebuttal experts will be held on or before 3/22/96 , The parties shall serve any report from compensatory damages experts on or before 3/15/96...(see order for further details)... ...So Ordered....( signed by Judge John G. Koeltl ); Copies mailed

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 10 of 14

02/28/1996 03/13/1996 04/05/1996 04/30/1996 05/20/1996 06/06/1996 06/28/1996 07/19/1996 07/26/1996
08/07/1996 08/09/1996 08/15/1996 09/16/1996

(pl) (Entered: 02/27/1996)
96 Filed Memo_Endorsement on letter dated 1/19/96 to Judge Koeltl from Debra L. Raskin... an extension of time until 1/22 to submit the proposed joint order.. SO ORDERED.. ( signed by Judge John G. Koeltl ) (kk) (Entered: 02/28/1996)
97 ORDER, The Court hereby orders that the schedule set forth in the Court's Order dtd. 2/6/96 is amended as follows: , discovery proceedings will end on 3/29/96 , reset dispositive motions filing deadline for 5/10/96...see doc. for further scheduling...SO ORDERED... ( signed by Judge John G. Koeltl ); Copies mailed (ls) (Entered: 03/14/1996)
ORDER, reset discovery due for 4/30/96 , reset dispositive motions filing deadline for 5/24/96 , reset Joint pretrial order due 6/7/96 , reset trial ready deadline 6/7/97...see doc. for other directions...SO ORDERED... ( signed by Judge John G. Koeltl ); Copies mailed *NOTE: orig. doc. fld. in related case no. 95 civ 2839 (JGK) (ls) (Entered: 04/08/1996)
98 Filed Memo_Endorsement on letter dated 4/24/96 to Judge Koeltl from Amy J. Beech.. PARTIES SHOULD SUBMIT AN AGREED UPON REVISED SCHEDULE OR ASK FOR A TELEPHONE CONFERENCE.. SO ORDERED. ( signed by Judge John G. Koeltl ) (kk) (Entered: 05/01/1996)
99 Filed Memo_Endorsement on letter dated 5/16/96, reset conference for 5/20/96. Contact the Deputy Clerk for a time ...So Ordered.....( signed by Judge John G. Koeltl ) (pl) (Entered: 05/21/1996)
100 ORDER, Set pretrial conference for 3:00 6/7/96 ( signed by Judge John G. Koeltl ); Copies mailed (ae) (Entered: 06/07/1996)
ORDER, *(see below) set discovery due for 8/21/96 , set dispositive motions filing deadline for 9/17/96 , set joint pretrial order due for 9/30/96 , set trial ready deadline for on or after 9/30/96...SO ORDERED... ( signed by Judge John G. Koeltl ); Copies mailed *Note: orig. doc. fld. in case no. 95 civ 2839 (JGK) and noted (only) in this related case (ls) (Entered: 07/01/1996)
101 Rule 3(g) statement filed by New York Telephone C, NYNEX (cd) (Entered: 07/23/1996)
102 ORDER, .. the Courtroom Deputy will schedule a conference with the parties to discuss the defendants' motion for summary judgment and the issues relating to the settlement. 2. the plaintiffs may submit their counterstatement under Rule 3(g) with their papers in opposition to the motion for summary judgment. However, the parties shoulld be prepared to discuss the bases for the motion and the responses to the motion at the conference. 3. The defendants' request to submit a memorandum in excess of 30 pages in support of the motion for summary judgment is denied. (motion not on file) The parties are reminded that the parties are to follow the rules of the Court of Appeals for the Second Circuit with respect to items such as margins, type size, etc. The parties are also reminded that affidavits, exhibits, and copious footnotes are not to be used as a means of circumventing the page limits. ( signed by Judge John G. Koeltl ); Copies mailed (djc) (Entered: 07/26/1996)
Pre−trial conference held before Judge Koeltl. (lam) (Entered: 08/09/1996)
103 ORDER, that defts shall serve their motion for summary judgment by 8/9/96 ; the pltffs shall serve their responses by 10/11/96 and the defts shall serve their reply by 11/8/96. The defts shall file the motion papers immediately after the motion is fully briefed. ( signed by Judge John G. Koeltl ); Copies mailed (lam) (Entered: 08/09/1996)
104 ORDER, the plntfs and class members listed in attachment A will be offered the 66Special pension enhancement by 12/1/96....the parties will attempt to resolve the issue of alleged damages to accepting class members and plntfs for the period form 7/15 through 8/11/96.... ( signed by Judge John G. Koeltl ); Copies mailed (cd) (Entered: 08/16/1996)
105 SEALED DOCUMENT placed in vault (sp) (Entered: 09/17/1996)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 11 of 14

10/02/1996
10/11/1996 11/12/1996 11/19/1996 12/04/1996 12/09/1996
12/12/1996 12/12/1996 12/12/1996 12/12/1996 12/12/1996 01/08/1997
01/16/1997
01/16/1997 01/16/1997

106 STIPULATION and ORDER, that the pltffs. listed on Exhibits A, B, and C are hereby dismissed w/ prejudice purs. to the terms of the Settlement Release, Covenant Not To Sue, Waiver and Non−Disclosure Agreements, and the following: 1. Pltffs. listed on Exhibits A and C will have the right to obtain a more favorable subsequent settlement in the lawsuit as described in paragrapnh 1f of the Releases. 2. The Pltfs. listed on Exhibit B. will have the right to obtain a more favorble subsequent settlement in the lawsuit as described in paragraph 1d of the Releases. 3. The District Court shall retain jurisdiction w/ respect to disputes under the Releases and defts' settlement offers. 4. this Court's Order dtd. 8/12/96 remains in effect. 5. Subject to the above, the case James L. Manzi, et al. v. New York Telephone Co. and NYNEX Corp., 93 Civ. 3606, is dismissed w/ prejudice in its entirety...SO ORDERED... ( signed by Judge John G. Koeltl ). (ls) (Entered: 10/03/1996)
107 Filed Memo_Endorsement on letter dated 10/04/96, Application for an extension of time to produce and respond granted. If the parties disagree with respect to the scope of production, the Court will decide ti in the context of the Proposed Order ...So Ordered....( signed by Judge John G. Koeltl ) (pl) (Entered: 10/15/1996)
108 Filed Memo_Endorsement on letter dated 11/5/96 from Matthew T. Miklave. Granting his application for an extension of time for defendants to serve their reply brief...So Ordered. ( signed by Judge John G. Koeltl ) (kw) (Entered: 11/13/1996)
109 STIPULATION EXTENDING DEFTS' TIME TO SERVE THEIR REPLY MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT until 11/27/96. (signed by Judge John G. Koeltl ) (lam) (Entered: 11/20/1996)
110 ORDER, Defendant reply brief on the motion for summary judgment by 12/6/96. ( signed by Judge John G. Koeltl ); Copies mailed (kw) (Entered: 12/04/1996)
111 MEMORANDUM ORDER, the Court resolved the issue of the plntfs' redacted documents and the privilege log at a subsequent ptc; because this proposed order disposing of matters decided in a ptc on 9/4/96 was only presented on 11/22/96, many of the dates in this order may be moot...parties to notify the Court so that dates can be changed ( signed by Judge John G. Koeltl ); Copies mailed (cd) (Entered: 12/10/1996)
112 SEALED DOCUMENT placed in vault (da) (Entered: 12/12/1996)
113 SEALED DOCUMENT placed in vault (da) (Entered: 12/12/1996)
114 SEALED DOCUMENT placed in vault (da) (Entered: 12/12/1996)
115 SEALED DOCUMENT placed in vault (da) (Entered: 12/12/1996)
116 SEALED DOCUMENT placed in vault (da) (Entered: 12/13/1996)
117 ORDER that the Notice attached as Exhibit A be sent to all class members in KRUEGER V. NEW YORK TELEPHONE CO. by overnight delivery service &that the Notice attached as Exhibit B be sent to all pltffs in JACKSON V. NEW YORK TELEPHONE CO. by overnight delivery service. ( signed by Judge John G. Koeltl ); Copies mailed (lam) (Entered: 01/09/1997)
118 Filed Memo−Endorsement on letter from Matthew T. Miklave , atty for defts dated 1/10/97, requesting for all parties an extension of time until 1/13/97 @9:00 to file the Settlement, Release, Covenant Not to Sue, Waiver and Non−Disclosure Agreement, pltffs' supporting memoranda and affidavits, and the Proposed Order Approving Settlement ..... SO ORDERED 1/12/97. KOELTL, J. ( signed by Judge John G. Koeltl ) (lam) (Entered: 01/17/1997)
121 AFFIDAVIT of Julian R. Birnabaum in support Re: Settlement (pl) (Entered: 01/21/1997)
122 NOTICE OF MOTION by plaintiffs' for an order approving the terms of the proposed settlement of this class and collective action as provided in the Stipulation and Agreement of Settlement, dated 1/16/97.. , Return date 1/17/97 (pl) Modified on 01/21/1997 (Entered: 01/21/1997)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 12 of 14

01/16/1997 01/16/1997 01/16/1997 01/16/1997 01/16/1997 01/16/1997 01/17/1997 01/17/1997 01/17/1997 01/17/1997 01/22/1997 01/23/1997 01/24/1997 01/28/1997

123 AFFIDAVIT in support of Julian R. Birnbaum Re: [122−1] motion for an order approving the terms of the proposed settlement of this class and collective action as provided in the Stipulation and Agreement of Settlement, dated 1/16/97.. (pl) (Entered: 01/21/1997)
124 MEMORANDUM by plaintiffs' in support of [122−1] motion for an order approving the terms of the proposed settlement of this class and collective action as provided in the Stipulation and Agreement of Settlement, dated 1/16/97.. (pl) (Entered: 01/21/1997)
125 CERTIFICATE OF SERVICE of Plaintiffs' Memorandum of Law in Support of Approval of Settlement: the Notice of Motion and the Affidavit of Julian R. Birnbaum upon (see attached list) on 1/16/97 (pl) (Entered: 01/21/1997)
126 Settlement, Release, Covenant Not To Sue, Waiver And Non−Disclosure Agreement And Exhibits: Volume I Of II, fld. by defts. (ls) (Entered: 01/21/1997)
127 Settlement, Release, Covenant Not To Sue, Waiver And Non−Disclosure Agreement And Exhibits, fld. by defts. (ENTERED IN ERROR IN THIS ACTION − DOCUMENT FILED IN RELATED CASE 94 CIV 3272 (JGK)). (ls) Modified on 04/10/1997 (Entered: 01/21/1997)
128 VOLUME II Of Exhibits: Settlement, Release, Covenant Not To Sue, Waiver And Non−Disclosure Agreement (Exhibits F. Cont'd. through G), fld. by defts. (ls) (Entered: 01/21/1997)
AFFIDAVIT in support of Matthew T. Miklave by New York Telephone C, NYNEX of Proposed Settlement Agreement in full Settlement of Civil Action. (Original document docketed in 94 civ. 3272 as # 32) (kw) Modified on 01/21/1997 (Entered: 01/21/1997)
MEMORANDUM by New York Telephone C, NYNEX in support of Defendants' Request for Court Approval of a Proposed Settlement Agreement in full Settlement of Civil Action. (Original document docketed in 94 civ. as # 33) (kw) (Entered: 01/21/1997)
119 AFFIDAVIT in support of Matthew T. Miklave by New York Telephone C, NYNEX of Proposed Settlement Agreement in full Settlement of Civil Action. (kw) (Entered: 01/21/1997)
120 MEMORANDUM by New York Telephone C, NYNEX in support of Defendants' Request for Court Approval of a Proposed Settlement Agreement in full Settlement of Civil Action. (kw) (Entered: 01/21/1997)
129 STIPULATION and ORDER, Pursuant to Fed. R. Civ. P. 25(a), Lucille Knight and Carolyn Tillistrand are substituted respectively as parties for consent signers Michael L. Knight, Sr., and Charles O. Tillistrand. ( signed by Judge John G. Koeltl ). (kw) (Entered: 01/22/1997)
130 ORDER granting [122−1] motion for an order approving the terms of the proposed settlement of this class and collective action as provided in the Stipulation and Agreement of Settlement, dated 1/16/97.. ( signed by Judge John G. Koeltl ); Copies mailed (kg) (Entered: 01/27/1997)
131 AFFIDAVIT of Julian R. Birnbaum (djc) (Entered: 01/28/1997)
132 ORDER APPROVING SETTLEMENT ...ORDEREED, that the proposed settlement is approved; ORDERED, that plaintiff eligible for participation under the Agreement have waived any and all rights to continue to prosecute, or to initiate or commence any lawsuits, charges, complaints or claims arising out of the released Claims. Claims of discrimination or retaliation which arise after the date of this Order are unaffected by this waiver provision; ORDERED, that any person who has failed to file objections in the manner provided for, has waived all objections and shall be barred from raising any such objections in this or any other proceeding respecting the settlement. ORDERED, that this Court retains jurisdiction over the settlement of this case and may enter additional orders to effectuate the fair and orderly administration of the settlement as may from time to time be appropriate. SO ORDERED. ( signed by Judge John G. Koeltl); Copies

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 13 of 14

01/28/1997 02/14/1997 02/28/1997 03/07/1997 03/17/1997 03/17/1997
03/18/1997 03/24/1997 04/03/1997 04/14/1997
04/14/1997
04/18/1997 05/13/1997

mailed (djc) (Entered: 01/28/1997)
Case closed (djc) (Entered: 01/28/1997)
Exhibit D. To Settlement, Release, Covenant Not To Sue, Waiver and Non−Disclosure Agreement (see below) by Doris Jackson, Jack Russek, Richard J. Simms, James Bunyar, Gerald Conahan and Thomas Osborne, on behalf of themselves and all others similarly situated *Note: orig. doc. fld. in related case no. 94 civ 3272(JGK) and noted only in this case (ls) (Entered: 02/19/1997)
133 ORDER, the Ordere dated August 12, 1996 is hereby amended such that Joseph Henry is deemed listed on Attachment B and is no longer listed on Attachment A. SO ORDERED. ( signed by Judge John G. Koeltl ); Copies mailed (djc) (Entered: 02/28/1997)
134 Transcript of record of proceedings filed for dates of Hon. John G. Koeltl before the Hon. John G. Koetlt. (djc) (Entered: 03/07/1997)
135 STIPULATION AND ORDER of dismissal w/prejudice; ( signed by Judge John G. Koeltl ) (kg) (Entered: 03/18/1997)
136 STIPULATION and ORDER, The Settlement, Release, Covenant Not to Sue, Waiver and Non−Disclosure Agreement approved by the Court on 1/24/97, is amended as follows: 1) Add "(5) Lillian Varney ("Varney") is disabled (Varney received a job offer that is no longer valid)" to l.b. on page 3; 2) Under 1.f., add "Varney," after "Tillistrand,"; 3) Add "Lillian Varney" to Exhibit E; 4) Delete "Joe Gibbs" from Exhibit H; 5) Delete "Harry Steingart" from Exhibit H; 6) Add "Raymond Finnerty" to Exhibit H; and 7) Add "Paula Behm" to Exhibit H. SO ORDERED: ( signed by Judge John G. Koeltl ). (ae) (Entered: 03/18/1997)
STIPULATION AND ORDER of dismissal with prejudice pursuant to the terms of the settlement. ( signed by Judge John G. Koeltl ) (Original docketed in 94 civ. 3272) (kw) (Entered: 03/18/1997)
137 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement....Redaction Dispute ( signed by Judge John G. Koeltl ) Referred to Magistrate Judge Douglas F. Eaton (kg) (Entered: 03/25/1997)
138 Transcript of record of proceedings filed for dates of 1/24/97 before Judge Koeltl. (sac) (Entered: 04/07/1997)
MEMORANDUM ORDER, *(see below) Judge Koeltl referred this redaction dispute to me. I have reviewed Ms. Raskin's 2/26/97 letter and Mr. Miklave's 3/25/97 letter (incl. the transcripts of the 1/24/97 and 3/7/97 proceedings before Judge Koeltl). I direct that both of these letters be fld. under seal , I have also reviewed Ms. Raskin's 3/18/97 letter, which requests me to hold a conference on this redaction dispute. I find that a conference is unnecessary , I am sending Ms. Raskin and Mr. Miklave ea. a copy of the first five pages of the settlement agreement, w/ my insutructions in red ink showing the redactions that must be made before the settlemetn agreement may be fld. ...SO ORDERED... ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed; *Note: orig. doc. fld. in related case no. 94 civ 3272(JGK) (DFE) (ls) (Entered: 04/14/1997)
139 MEMORANUDM AND ORDER, I direct that both of these letter be filed under seal. I have also reviewed M. Raskins' 3/18/97 letter, which requests me to hold a conference on this redaction dispute. I find that a conference is unnecessary , I am sending Ms. Raskin and Mr. Miklave each a copy of the first five pages of the settlement agreement, .... ...So Ordered.....( signed by Magistrate Judge Douglas F. Eaton ) (pl) (Entered: 04/15/1997)
140 JUDGMENT, These cases having been settled in accordance with the Stipulation and Order dated 3/18/97, this action is hereby dismissed with prejudice. SO ORDERED: ( signed by Judge John G. Koeltl ); Mailed copies and notice of right to appeal. EOD:4/21/97 (ae) Modified on 04/25/1997 (Entered: 04/21/1997)
141 Transcript of record of proceedings filed for dates of 3/7/97 @2:45 before Judge Koeltl. (lam) (Entered: 05/13/1997)

Case: 1:93-cv-178 As of: 09/01/2010 08:25 PM EDT 14 of 14

07/18/1997
07/23/1997 07/23/1997 03/23/1998

142 ORDER..this Court shall retain jurisdiction over any dispute or litigation arising out of the Settlement Agreements in the Krueger and Carroll actions. Thus, if plaintiffs wish to elect the "6 &6", they must sign its general release. ( signed by Judge John G. Koeltl ); Copies mailed (kk) (Entered: 07/21/1997)
143 ORDER sealing the unredacted Krueger settlement agreement and placing a redacted version in the public file ( signed by Magistrate Judge Douglas F. Eaton ); Copies mailed (kk) (Entered: 07/23/1997)
144 SEALED DOCUMENT placed in vault (af) (Entered: 07/23/1997)
145 ORDER, the Court has received the attached correspondence from Ms. Krueger which it is returning to her counsel. The court should not be copied on correspondence and no documents should be sent to the Court except through counsel with a copy to counsel for all other parties ( signed by Judge John G. Koeltl ); Copies mailed (also docketed in 93cv179 and 93cv3606) (cd) (Entered: 03/24/1998)