Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 1 of 17
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #:
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`DATE FILED:
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`7/3/22
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`18-CV-8434 (VEC)
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`MEMORANDUM
`OPINION AND ORDER
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`Plaintiffs,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`X
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`EDVIN RUSIS, HENRY GERRITS, PHIL
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`MCGONEGAL, and DAVID HO ENG,
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`individually and on behalf of all other similarly
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`situated individuals,
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`Defendant.
`X
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`VALERIE CAPRONI, United States District Judge:
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`-against-
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`INTERNATIONAL BUSINESS
`MACHINES CORP.,
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`This is a putative collective action against Plaintiffs’ former employer, International
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`Business Machines Corp. (“IBM”), alleging violations of the Age Discrimination in Employment
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`Act (“ADEA”), 29 U.S.C. § 621 et seq. Second Am. Compl. (“SAC”), Dkt. 180 ¶¶ 1, 26–27.
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`Plaintiffs allege that, since 2012, IBM has laid off or otherwise forced its older workers out of
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`the company in a systematic effort to replace them with younger employees. Id. ¶ 22. IBM has
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`moved for summary judgment as to a group of thirty-four Opt-In Plaintiffs who joined this
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`lawsuit to pursue claims of constructive discharge or pretextual for-cause termination.1 See Not.
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`This group is comprised of Gabriele Avzaradel, Anne Belt, Thomas Caldwell, William Chaplin, David
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`Edley, Judy Ghea, David Hamel, Cynthia Keefer, Diane Prater, Ronald Ragsdale, David Reid, John Stapleton,
`Christopher Stevenson, Diane Delaney, John Gates, Craig Grills, Sonali Bailey Perkins, Danny Peterman, Rene
`Ramos, Thomas Warthen, Mark Bauer, Melody Faeizi, Arleen Franceschi, James Rash, Bunyan Tadlock, Mark
`Mastel, Michael Shattuck, Vincent Daukas, John Gray, Raymond Otto Kulisch, Charles (Jim) Lundy, David
`Ogilbee, Chohreh Partovian, and Michael Rudge. Def. Mem., Dkt. 217 at 9–17 (citations omitted). Although IBM
`originally sought summary judgment as to forty-four Opt-In Plaintiffs, the Court has already granted summary
`judgment as to ten of them — Anne Bellew, Demostenes Gonzalez, Steven Black, Mark Grill, Peter Kondis, Walter
`Bayerle, Phillip Emma, Rose Kapor, Brian Schaaff, and Eric Selcov — in a separate opinion. Op. & Order, Dkt.
`266 at 1 ns.1–2, 11.
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`1
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`Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 2 of 17
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`of Mot., Dkt. 215. For the reasons that follow, IBM’s motion is GRANTED in part and
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`DENIED in part.
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`BACKGROUND
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`The Court assumes familiarity with the facts of the case, which were outlined in the
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`Court’s opinion on IBM’s motions for judgment on the pleadings dated March 26, 2021. See
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`Rusis v. Int’l Bus. Machines Corp., 529 F. Supp. 3d 178, 188–90 (S.D.N.Y. 2021). In brief,
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`Named and Opt-In Plaintiffs are former IBM employees who separated from the company at age
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`forty or older, and who allege that their terminations or separations violated the ADEA because
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`they were part of a company-wide effort to oust older employees from IBM. SAC ¶¶ 22–29.
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`Plaintiffs allege that IBM pursued this goal in several ways, such as by: engaging in mass layoffs
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`known as “Resource Actions”; terminating older employees for pretextual reasons; and
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`constructively discharging older employees. Id. ¶ 28.
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`IBM has filed three motions for non-merits summary judgment, see Nots. of Mot., Dkts.
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`207, 215, 222, one of which the Court has already granted in full, see generally Op. & Order,
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`Dkt. 266. This opinion deals only with IBM’s motion as to Opt-In Plaintiffs pursuing
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`constructive discharge or pretextual for-cause termination claims (collectively “Separation Opt-
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`Ins”).
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`I.
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`Legal Standard
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`DISCUSSION
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`Summary judgment is appropriate when “the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
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`R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the record
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`taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
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`2
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`Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 3 of 17
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`‘genuine issue for trial.’” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec.
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`Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). To defeat summary judgment,
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`the nonmoving party must come forward with “specific facts showing that there is a genuine
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`issue for trial.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (quoting Fed. R.
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`Civ. P. 56(e)) (amended 2007). A party may not “rely on mere conclusory allegations nor
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`speculation, but instead must offer some hard evidence showing that [his] version of the events is
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`not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
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`Summary judgment cannot be defeated by the presentation of “but a ‘scintilla of evidence’
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`supporting [plaintiffs’] claim.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 726
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`(2d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
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`On a motion for summary judgment, courts “construe the facts in the light most favorable
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`to the non-moving party and [] resolve all ambiguities and draw all reasonable inferences against
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`the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam)
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`(internal quotation marks and citation omitted). A district court is not, however, under any
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`“obligation to engage in an exhaustive search of the record” when considering a motion for
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`summary judgment. Jones v. Goord, 435 F. Supp. 2d 221, 259 (S.D.N.Y. 2006) (citing Amnesty
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`Am. v. Town of W. Hartford, 288 F.3d 467, 470–71 (2d Cir. 2002)).
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`As a threshold matter, it is undisputed that the thirty-four Separation Opt-Ins did not file
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`administrative charges of discrimination. Def. Reply 56.1 Stmt., Dkt. 260 ¶ 47.2 The question
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`before the Court, therefore, is whether the Separation Opt-Ins can “piggyback” on other charges
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`and join this lawsuit. Pursuant to the “single filing rule,” individuals who failed to comply with
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`The only Separation Opt-In to have done so is Walter Bayerle, Def. Reply 56.1 Stmt. ¶ 47 n.4 (citations
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`omitted), one of the ten Opt-Ins whose claim was dismissed by the Court in its prior opinion, see supra n.1.
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`3
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`Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 4 of 17
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`the administrative requirements to bring an ADEA claim can join an existing lawsuit, “so long as
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`the matter complained of [by the non-filer] was within the scope of [a] previously filed charge,
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`regardless of who filed it.” Tolliver v. Xerox Corp., 918 F.2d 1052, 1057 (2d Cir. 1990) (quoting
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`43 Fed. Reg. 138, 139 (1983)). An individual who has not filed an administrative charge may
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`piggyback onto claims that were made, as well as any claims that are “reasonably related” to
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`conduct alleged in another individual’s charge. Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev., 990
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`F.2d 1397, 1403 (2d Cir. 1993), superseded by statute on other grounds, Civil Rights Act of
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`1991, Pub. L. No. 102-166, 105 Stat. 1071; see also Holtz v. Rockefeller & Co., 258 F.3d 62, 83
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`(2d Cir. 2001). “In determining whether claims are reasonably related, the focus should be ‘on
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`the factual allegations made in the [Equal Employment Opportunity Commission (“EEOC”)]
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`charge itself, describing the discriminatory conduct about which a plaintiff is grieving.’”
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`Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Freeman v. Oakland Unified Sch.
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`Dist., 291 F.3d 632, 637 (9th Cir. 2002)). Whether a non-filing individual may piggyback on
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`another’s EEOC charge depends on the nature and scope of the “grievances” asserted in the
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`charge. Tolliver, 918 F.2d at 1057–58.
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`Under the broadest test, preferred by the Second Circuit, the non-filing individual must
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`demonstrate only that he was “similarly situated and received the same discriminatory treatment”
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`as the charge-filing individual on whose claim he wishes to piggyback. Snell v. Suffolk County,
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`782 F.2d 1094, 1101 (2d Cir. 1986) (citation omitted). “[W]here the grievances are alleged to
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`arise throughout a large group,” however, the Second Circuit has imposed an additional
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`requirement that there be “some indication that the grievance [asserted in the timely-filed charge]
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`affects a group of individuals defined broadly enough to include those who seek to piggyback on
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`the claim,” such that “sufficient notice [has been provided] to the employer to explore
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`4
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`Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 5 of 17
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`conciliation with the affected group.” Tolliver, 918 F.2d at 1058. For the filed charge to support
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`piggybacking by the non-filer, the court must be convinced that “no conciliatory purpose” would
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`have been served by the non-filer filing a separate EEOC charge. Id. at 1058–59 (quoting Foster
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`v. Gueory, 655 F.2d 1319, 1322 (D.C. Cir. 1981)).
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`II.
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`The Separation Opt-Ins Cannot Piggyback on the Named Plaintiffs’ Charges
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`Defendant first argues that the Separation Opt-Ins cannot piggyback on charges from
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`Named Plaintiffs Phil McGonegal, Sally Gehring, Philip Monson, and Claudia Ziegler.3 Def.
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`Mem., Dkt. 217 at 17–24. The Court agrees.
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`A. McGonegal’s Charge Was Untimely, and Therefore Cannot Sustain
`Piggybacking
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`IBM argues that the Separation Opt-Ins cannot piggyback on McGonegal’s charge
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`because it was untimely,4 and, in the alternative, that even if it had been timely, it cannot provide
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`a basis for piggybacking on the merits. Def. Mem. at 18–19. The Court need not reach the
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`second argument because IBM prevails on the first.
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`On May 1, 2017, McGonegal was notified that he was eligible to participate in IBM’s
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`Transition to Retirement Program, a program in which individuals work a reduced schedule for a
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`year and then retire from the company. Def. Reply 56.1 Stmt. ¶¶ 4–5, 9. On May 12, 2017, IBM
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`told McGonegal that if he did not participate in the Transition to Retirement Program, he must
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`relocate to Raleigh, North Carolina, where he could continue to work full-time. Id. ¶ 6.
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`The five other Named Plaintiffs’ charges also cannot provide a basis for piggybacking. Named Plaintiff
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`John Mason never filed a charge, Def. Reply 56.1 Stmt. ¶ 3, and the Court previously dismissed Named Plaintiff
`David Eng’s ADEA claim with prejudice, Rusis, 529 F. Supp. 3d at 204. The Court has already held that the
`charges of Named Plaintiffs Edvin Rusis and Henry Gerrits “permit piggybacking only for former IBM employees
`who were terminated as part of an IBM Resource Action — i.e., a layoff.” Id. at 214. Finally, Plaintiffs do not
`claim that they can piggyback on Named Plaintiff Brian Haupt’s charge. Pls. Opp., Dkt. 246 at 21–23.
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`The Court previously declined to determine whether McGonegal’s charge had been timely filed. See Rusis,
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`529 F. Supp. 3d at 220–22.
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`McGonegal sought an exception to the Raleigh transfer that was denied. Id. ¶¶ 7–8. He then
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`joined the Transition to Retirement Program on May 31, 2017, id. ¶ 9, resulting in his separation
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`from IBM on June 30, 2018, id. ¶ 10. These facts are undisputed; whether his charge was timely
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`turns both on the date on which his charges were filed and on the date on which the claim
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`underlying the charge accrued.
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`1. The Effective Date of McGonegal’s Charge Was July 2, 2018
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`Although McGonegal faxed a charge to the EEOC on July 2, 2018, id. ¶ 13, in August
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`2020, the EEOC indicated that faxed communications were “not the ideal way to communicate
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`with the” EEOC, implying that it had not actually received the charge when it was submitted,
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`Liss-Riordan Decl., Dkt. 242, Ex. 5. Nevertheless, the EEOC processed the charge “as received”
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`on July 2, 2018. Id.
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`IBM contends that because there is no evidence that McGonegal’s charge was processed
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`by the EEOC in July of 2018, and no receipt of the charge was provided until August 6, 2020,
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`the charge cannot be deemed to have been filed as of July 2, 2018. Def. Mem. at 19. IBM fails,
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`however, to cite any caselaw suggesting the Court should not give credence to the EEOC’s
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`determination that the date of receipt was July 2, 2018. See id.
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`Although the Second Circuit has yet to determine whether the date that a charge is
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`submitted or the date of receipt is the operative filing date, see Wu v. Good Samaritan Hosp.
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`Med. Ctr., 815 F. App’x 575, 579 (2d Cir. 2020), district courts in this Circuit have held that the
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`latter is the filing date, Pearson v. City of New York, No. 20-CV-3592, 2021 WL 2894776, at *4
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`(S.D.N.Y. July 9, 2021) (collecting cases). Whether IBM was on notice of the charge on or
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`around the date it was received by the EEOC is irrelevant to whether it was timely filed.
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`Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 567 (2d Cir. 2006), aff’d, 552 U.S. 389 (2008)
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`(“[I]f an individual satisfactorily notifies the EEOC of her charge, she is not foreclosed from
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`federal suit merely because the EEOC fails to follow through with notifying the employer . . . .”).
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`Regardless of whether the date of submission or the date of receipt controls, the EEOC
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`retroactively determined that the date of receipt was July 2, 2018 — the same date as the date of
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`submission. See Liss-Riordan Decl., Ex. 5. IBM has offered no compelling argument why the
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`Court should ignore the EEOC’s determination; accordingly, the Court considers McGonegal’s
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`claim to have been filed with the EEOC on July 2, 2018.
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`2. McGonegal’s Charge Was Untimely
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`IBM next argues that, even if McGonegal’s charge was filed on July 2, 2018, it was
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`untimely because his age discrimination claim accrued in May 2017. Def. Mem. at 19; see also
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`Def. Mem. on Untimely Charges, Dkt. 209 at 13–15.5 Plaintiffs argue that McGonegal’s claim
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`of constructive discharge did not accrue until he learned that younger employees were being
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`granted exceptions to relocation orders, thus putting him on notice of a potential age
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`discrimination claim. Pls. Opp. on Untimely Charges, Dkt. 249 at 2.
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`The Supreme Court has clearly held that “a wrongful-discharge claim accrues — and the
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`limitations period begins to run — when the employee gives notice of his resignation, not on the
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`effective date of that resignation.” Green v. Brennan, 578 U.S. 547, 564 (2016). It is undisputed
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`that McGonegal gave notice of his separation from IBM in May 2017 when he joined the
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`Transition to Retirement Program. Def. Reply 56.1 Stmt. ¶ 9. To the extent that McGonegal’s
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`constructive discharge claim turns on the denial of his request for an exception to a relocation
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`order, McGonegal learned of that denial by May 30, 2017. Def. Mem. on Untimely Charges at
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`15 (citations omitted). Whenever McGonegal learned that IBM was granting exceptions to
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`Certain arguments dealt with in this opinion were addressed by the parties in their briefing for a separate
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`summary judgment motion; the Court cites to that briefing where appropriate throughout.
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`younger employees is irrelevant to when his claim accrued. As the Court has already elucidated
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`in its prior opinion, a claim accrues when a plaintiff suffers an injury, not when he learns that the
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`injury was the result of wrongdoing. Rusis, 529 F. Supp. 3d at 227 n.47 (citing Lugo-Young v.
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`Courier Network, Inc., No. 10-CV-3197, 2012 WL 847381, at *5 (E.D.N.Y. Mar. 13, 2012)).
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`Plaintiffs attempt to rely on Petrelli v. City of Mount Vernon, 9 F.3d 250, 254 (2d Cir.
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`1993), in arguing that McGonegal’s claim accrued when he allegedly became aware that younger
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`employees were being granted exceptions to relocation orders. Pls. Opp. on Untimely Charges at
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`19. In Petrelli, the Second Circuit determined that a claim for failure-to-hire did not accrue until
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`the plaintiff was on notice that a younger person had been hired to fill the position. 9 F.3d at
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`254.. But Petrelli is not helpful to McGonegal because McGonegal is not asserting a failure-to-
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`hire claim. Because an element of a failure-to-hire ADEA claim is that the position was filled by
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`a younger person, it is obvious that must happen before the claim can accrue. For that reason,
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`Petrelli is not analogous.6
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`Plaintiffs also attempt to argue that, because McGonegal appealed the denial of his
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`request for an exception to the relocation order, his injury did not occur until the appeal was
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`denied. Pls. Opp. on Untimely Charges at 20. It is well-settled law, however, that the process of
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`appealing an injurious decision does not toll the statute of limitations. Del. State Coll. v. Ricks,
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`449 U.S. 250, 261 (1980) (“[T]he pendency of a grievance, or some other method of collateral
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`review of an employment decision, does not toll the running of the limitations periods.”) (citation
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`omitted). The time of the injury, therefore, remains May 30, 2017, when McGonegal learned of
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`Plaintiffs also point to Fine v. Interpublic Grp. of Cos., Inc., No. 94-CV-4419, 1994 WL 701996, at *4
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`(S.D.N.Y. Dec. 14, 1994), for the same proposition. Pls. Opp. on Untimely Charges at 19. In Fine, the issue with
`respect to notice turned on whether the plaintiff had notice of his discharge or merely notice of being transferred.
`Fine, 1994 WL 701996, at *3–4. Fine cannot be read to suggest that the relevant notice is notice of discrimination
`or wrongdoing, as opposed to notice of injury.
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`the denial, regardless of his appeal or the date the appeal was decided. Def. Mem. on Untimely
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`Charges at 15 (citations omitted).
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`In sum, although the Court credits the EEOC’s determination that McGonegal’s charge
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`was properly filed and received on July 2, 2018, his charge was untimely because his claim
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`accrued, at the latest, on May 31, 2017, the date on which he entered the Transition to
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`Retirement Program. Because his charge was untimely, IBM is entitled to summary judgment on
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`his claim, and Separation Opt-Ins cannot piggyback on his claim.7
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`B. Individuals Can Piggyback on Charges of Named Plaintiffs, including
`Named Plaintiffs Added in an Amended Complaint, but the Separation Opt-
`Ins Cannot Do So Here
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`It is an open question whether non-charge filers can piggyback on the EEOC claims of
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`Named Plaintiffs who join an action via an amended complaint. Defendant contends that they
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`cannot. Def. Mem. at 23. IBM hangs its entire argument on a cherry-picked quote from an
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`Eleventh Circuit case that refers in passing to piggybacking on claims from the “original named
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`plaintiff”. See Grayson v. K Mart Corp., 79 F.3d 1086, 1108 (11th Cir. 1996) (“putative
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`plaintiffs should be allowed to piggyback only on the timely filed EEOC charge of an original
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`named plaintiff of class action.”) (emphasis omitted). In context, this quote is not the stake in the
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`heart that IBM suggests. In Grayson, the Eleventh Circuit held that an opt-in plaintiff cannot
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`piggyback on another opt-in plaintiff’s charge and must instead piggyback on a named plaintiff’s
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`charge. 79 F.3d at 1102. When summarizing this holding in its conclusion, the Court referred to
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`the need to piggyback on an “original named plaintiff[’s]” charge, not by way of contrast to the
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`Even if McGonegal’s charge had been timely, the Court previously noted that it “is substantively identical
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`to the Rusis/Gerrits charges.” Rusis, 529 F. Supp. 3d at 220 (citation omitted). As such, it is unlikely that Plaintiffs
`asserting claims of discrimination who were not terminated in a Resource Action could piggyback on his charge.
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`charge of an added named plaintiff, but by way of contrast to the charge of an opt-in plaintiff.8
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`Id. at 1108 (emphasis omitted). In fact, the only case that appears to have addressed the issue
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`head-on allowed piggybacking on the claim of a plaintiff who was added to the case by way of
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`an amended complaint. See Catlin v. Wal-Mart Stores, Inc., 123 F. Supp. 3d 1123, 1131 (D.
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`Minn. 2015).
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`IBM likens allowing piggybacking on the claim of a later Named Plaintiff to allowing
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`piggybacking on the claim of an opt-in plaintiff, which the Court has already determined is
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`impermissible. Rusis, 529 F. Supp 3d at 210–11. But the concerns that animated the Court’s
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`holding that a non-charge filer cannot piggyback onto the charge of a charge-filer who opted into
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`a collective are not directly applicable to the charge of a Named Plaintiff, even if that Named
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`Plaintiff only joins the lawsuit by way of an amended complaint. The restriction on
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`piggybacking to which the Court previously pointed is that “the individual who filed the EEOC
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`charge must actually file a suit that the piggybacking plaintiff may join” in order for a putative
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`plaintiff to piggyback onto that charge. Bettcher v. Brown Schs., Inc., 262 F.3d 492, 494–95 (5th
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`Cir. 2001) (emphasis omitted). A Named Plaintiff has filed a lawsuit, even if he or she has only
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`done so by virtue of being added to the case by way of an amended complaint.
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`Although the Court appreciates IBM’s point that adding Named Plaintiffs for
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`piggybacking purposes could encourage gamesmanship, Def. Mem. at 21, the Court would be far
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`more inclined to be sympathetic to that argument here had IBM objected to allowing Plaintiffs to
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`file the Second Amended Complaint that added these Named Plaintiffs. Having consented to
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`The Court also notes that, although the Second Circuit in Tolliver referred in passing to the relationship
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`between the opt-ins’ claims and those of the “original named plaintiffs,” 918 F.2d at 1059, as in Grayson, that was
`not in a context in which there were any new plaintiffs stemming from an amended complaint that could serve as a
`point of comparison.
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`Plaintiffs’ filing the Second Amended Complaint, see Dkt. 176, which IBM knew added
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`additional individuals as Named Plaintiffs, IBM is hard-pressed to seriously argue that allowing
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`piggybacking on the additional Named Plaintiffs’ charges would “eviscerate” the Court’s ruling
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`that non-charge filers cannot piggyback on opt-ins’ charges. Def. Mem. at 23.9
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`Because the Court finds that piggybacking on an added Named Plaintiff’s charge is
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`permissible, it next turns to whether the Separation Opt-Ins can piggyback on the charges of the
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`added Named Plaintiffs.
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`1. The Separation Opt-Ins Cannot Piggyback on Gehring’s Charge
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`The Court first finds that the Separation Opt-Ins may not piggyback on Gehring’s charge;
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`no portion of her charge relates to claims of constructive discharge or pretextual for-cause
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`termination. Gehring’s charge reads in full:
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`I was forced to train a new employee who was outside my protected statuses. I was
`subjected to a hostile work environment when training others to do my job duties.
`Particularly, I trained workers who were male, under age of 40, non-American
`national origin and a different race to do my job duties. After which, I was
`terminated and my job duties were taken over by workers outside all of my
`protected statuses. Many employees in my protected statuses have been terminated
`and are not being hired.
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`Liss-Riordan Decl., Dkt. 242, Ex. 9.
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`Even applying the broad test preferred in the Second Circuit, the Separation Opt-Ins
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`cannot piggyback on that charge. The Court has already held that “[g]eneral statements asserting
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`only that IBM engaged in widespread age discrimination are patently insufficient to put the
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`EEOC or IBM on notice of future claims alleging constructive discharge or pretextual
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`termination.” Rusis, 529 F. Supp. 3d at 216 (citations omitted). “Many employees in my
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`Although the Court always appreciates parties working cooperatively with one another during litigation, it
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`would not have been unreasonable for IBM to have opposed Plaintiffs’ motion for leave to file a Second Amended
`Complaint, which did little beyond adding additional Named Plaintiffs. See generally SAC, Dkt. 180.
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`protected statuses have been terminated and are not being hired” is just such a general statement.
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`Liss-Riordan Decl., Ex. 9. Other than her cursory, generalized reference to a pattern of
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`discrimination, Gehring’s charge is entirely individualized and refers to multiple forms of
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`discrimination against herself based on multiple protected statuses; the Court can hardly find that
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`“no conciliatory purpose would [have been] served by filing separate EEOC charges” where
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`Gehring’s charge only put the employer on notice of a laundry-list of individualized potential
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`violations. Tolliver, 918 F.2d at 1058–59 (quoting Foster, 655 F.2d at 1322). Further, and
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`perhaps more significantly, the Separation Opt-Ins are not “similarly situated” to Gehring;
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`Gehring was separated in a Resource Action and they were not. Def. Reply 56.1 Stmt. ¶¶ 24–25;
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`see also Snell, 782 F.2d at 1101 (holding the non-filing individual must have “received the same
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`discriminatory treatment” as the charge-filing individual). As a result, the EEOC investigation
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`that would have stemmed from her charge would not likely have been broad enough to
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`encompass the claims asserted by the Separation Opt-Ins.
`
`2. Separation Opt-Ins Cannot Piggyback on Monson and Ziegler’s
`Charges
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`Unlike Gehring’s charge, Monson and Ziegler’s charges refer expressly to constructive
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`discharge and pretextual for-cause termination claims. Both state:
`
`IBM is discriminating against its older workers on a class-wide basis across the
`entire company, both by laying them off or otherwise discharging them (through
`termination or constructive discharge) disproportionately to younger workers and
`not hiring them for open positions. Indeed, over the last several years, IBM has
`been in the process of systemically laying off (or otherwise discharging) its older
`employees in order to build a younger workforce. IBM has laid off (or otherwise
`discharged) at least 20,000 employees over the age of forty in the last five years.
`
`
`Liss-Riordan Decl., Dkt. 242, Exs. 8, 10. Although these charges include conclusory assertions
`
`about termination and constructive discharge, the factual allegations of allegedly discriminatory
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`treatment of Monson and Ziegler themselves related solely to Resource Actions. See Liss-
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`
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`Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 13 of 17
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`Riordan Decl., Ex. 8 (Monson stating: “I was laid off by IBM effective September 4, 2019.”);
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`Liss-Riordan Decl., Ex. 10 (Ziegler stating: “I was laid off by IBM effective December 17,
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`2020.”); Def. Reply 56.1 Stmt. ¶¶ 29, 37. Thus, as with Gehring’s charge, the charges
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`themselves do not provide a basis for piggybacking by individuals who are complaining of
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`constructive discharge and pretextual terminations. Snell, 782 F.2d at 1101 (holding the non-
`
`filing individual must have “received the same discriminatory treatment” as the charge-filing
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`individual); Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008) (in
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`determining the scope of a charge for purposes of piggybacking, the Court must look at the
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`factual allegations describing the discrimination about which the claimant is complaining)
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`(citation omitted); Butts, 990 F.2d at 1403 (vague, general allegations do not invite a meaningful
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`EEOC response and do not define the scope of a reasonable EEOC investigation). For reasons
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`similar to those explained above, the Separation Opt-Ins cannot piggyback on these charges.
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`III.
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`IBM Has Not Met Its Burden of Showing That, as a Matter of Law, the
`Separation Opt-Ins Cannot Piggyback on Charges from Named Plaintiffs in
`Other Lawsuits
`
`Because the Separation Opt-Ins cannot piggyback on the charges of any of the Named
`
`
`
`Plaintiffs, the Court turns to the parties’ dispute over whether the Separation Opt-Ins can
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`piggyback on the charges of plaintiffs who filed other lawsuits (“Unrelated Named Plaintiffs”).
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`Def. Mem. at 24–25; Pls. Opp. at 17–21.
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`As the Court noted in its prior opinion, there is “markedly little guidance” as to whether
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`opt-ins in a putative class and collective action may piggyback on the charges of an Unrelated
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`Named Plaintiff. Rusis, 529 F. Supp. 3d at 211 n.26. Two district courts in the Northern District
`
`of Illinois have expressly held that an opt-in plaintiff must join the suit of the named party on
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`whose claim he or she is piggybacking. Zuckerstein v. Argonne Nat. Lab’y, 663 F. Supp. 569,
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`
`
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`Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 14 of 17
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`574 (N.D. Ill. 1987) (“[A]t least one complying plaintiff must be a party to the suit.”); Brewton v.
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`City of Harvey, 285 F. Supp. 2d 1121, 1127–28 (N.D. Ill. 2003) (applying Zuckerstein). Apart
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`from that, despite IBM’s efforts to claim otherwise, there is virtually no caselaw on the issue.10
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`That said, as this Court has previously observed, “as a matter of normal litigation practice, the
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`named plaintiffs in litigation control the scope of the litigation based on the injury they allegedly
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`suffered.” Rusis, 529 F. Supp. 3d at 211 n.26.
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`Plaintiffs argue that because the Second Circuit in Tolliver allowed subsequent claimants
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`to use a prior charge as a predicate for filing their own separate suits, this Court ought to allow
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`the Separation Opt-Ins to piggyback on the claims of Unrelated Named Plaintiffs to join this
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`case. Pls. Opp. at 15–16 (citing 918 F.2d at 1057, 1060). Tolliver turned on whether
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`decertification of a class prevented individuals from piggybacking on charges of the named
`
`plaintiff in the action into which they had opted when filing a separate lawsuit. 918 F.2d at
`
`1057, 1059–60. Although Tolliver allows individuals to bring separate lawsuits by piggybacking
`
`on charges filed by plaintiffs in an existing lawsuit, it did not face the question currently before
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`the Court — namely, whether an opt-in plaintiff can expand the scope of the claims in a lawsuit
`
`as defined by the complaint filed by the Named Plaintiffs by piggybacking on an Unrelated
`
`Named Plaintiff’s charge.
`
`The primary concern that the Court has if the Separation Opt-Ins are allowed to
`
`piggyback on Unrelated Named Plaintiffs’ claims is that they would then be asserting claims that
`
`no Named Plaintiff has asserted. Other than McGonegal, who asserted a constructive discharge
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`claim but who is no longer part of this case as of this opinion, see supra Section II(A), none of
`
`
`IBM boldly states that “numerous courts around the country have concluded that individuals cannot
`10
`piggyback on the claims of a plaintiff in a different lawsuit,” and proceeds to cite three cases, none of which so hold.
`Def. Mem. on Untimely Charges at 22 (citing Bettcher, 262 F.3d at 495; Coghlan v. Peters, 555 F. Supp. 2d 187,
`201 (D.D.C. 2008); and Morton v. ICI Acrylics, Inc., 69 F. Supp. 2d 1038, 1042 (W.D. Tenn. 1999)).
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`Case 1:18-cv-08434-VEC-SLC Document 267 Filed 07/03/22 Page 15 of 17
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`the remaining Named Plaintiffs alleges constructive discharge or pretextual for-cause
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`termination. Def. Reply 56.1 Stmt. ¶¶ 1, 16, 19, 24, 29, 37. Notwithstanding conclusory
`
`assertions of discrimination in the form of constructive discharge and pretextual for-cause
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`termination scattered throughout the Second Amended Complaint, see, e.g., SAC ¶¶ 1, 28, as
`
`defined by the claims of the Named Plaintiffs, this lawsuit is about older employees who were
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`terminated by IBM in Resource Actions, full stop. If the Separation Opt-Ins are allowed to opt-
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`in to this case based on claims filed with the EEOC and in federal court by Unrelated Named
`
`Plaintiffs, they will expand the case beyond the basis of the lawsuit as defined by the Named
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`Plaintiffs. While Tolliver contemplates that non-charge-filing individuals can bring their own
`
`lawsuits, the scope of which would be determined by their claims, by piggybackin