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Andreana v. Virginia Beach City Public Schools

United States District Court, E.D. Virginia, Norfolk Division

February 11, 2019

JOSEPH H. ANDREANA, on behalf of himself and all others similarly situated Plaintiff,
v.
VIRGINIA BEACH CITY PUBLIC SCHOOLS, and SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH. Defendants.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE.

         This Order stems from Plaintiff Margaret S. Marcotte's ("Marcotte") Response to this Court's January 14, 2019 Order. In that Order, the Court directed Marcotte's Counsel to inform the Court whether Marcotte would continue to pursue her disparate treatment claim in this instant collective action, or if she wishes to do so in her individual lawsuit captioned as Marcotte v. School Board of the City of Virginia Beach, 2:17-cv-606, which she filed in the same United States District Court before the Honorable Chief Judge Mark S. Davis. ECF No. 73. On January 24, 2019, Marcotte's Counsel filed a response to the January 14, 2019 Order, in which he states that Marcotte will not make either election but continue in both suits. See ECF No. 76 at 3. For the reasons stated below, given Marcotte's refusal to make an election, despite a court order to do so, the Court DISMISSES Marcotte as a plaintiff from the instant lawsuit. She may pursue her claims in her individual lawsuit.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This action stems from a series of allegations of age discrimination against Virginia Beach public schools. See generally ECF No. 1. Named plaintiff Joseph Andreana ("Andreana") claims that in 2015, Virginia Beach City Public Schools and the School Board of Virginia Beach ("Defendants") informed all 104 Computer Resource Specialist ("CRS") employees that the position would cease to exist, and Defendants would create only eighty-four Information Technology Specialist ("ITS") positions. Id. Defendants allegedly required all former CRSs to reapply to the new ITS positions, directly competing with other employees and the general public. Id. Of the 104 former CRSs, ninety-nine of them applied to be ITSs, while there were 100 other applicants. Id. at ¶ 11.

         Defendants used a "screening and evaluation process and policy" in selecting candidates for the ITS positions. Id. Plaintiffs claim that this process and policy was willfully discriminatory because it disregarded older candidates in favor of younger ones. Id. at ¶¶ 12, 26. Plaintiffs allege that Defendants selected individuals for the ITS position based on age, even though Plaintiffs allegedly were better qualified and met all expectations in carrying out their duties as CRSs. Id. at ¶¶ 16-19. As a result of this alleged discrimination, Plaintiffs allegedly were forced to accept positions with Defendants at lower pay or retire. Id. at ¶¶ 20-22.

         Andreana filed his Complaint for this collective action on behalf of himself on November 7, 2017. Andreana alleged three claims under the Age Discrimination in Employment Act of 1967 ("ADEA"): disparate treatment, disparate impact, and pattern and practice discrimination. Id. at ¶¶ 33-47.

         On November 20, 2017, Marcotte filed her individual action. Marcotte, ECF No. 1. Marcotte alleges claims for disparate treatment, disparate impact, and retaliation under the ADEA for similar conduct from 2015 through 2017. Id. at ¶¶ 30-46. On January 2, 2018, Marcotte amended her Complaint. ECF No. 12. In her Amended Complaint, Marcotte dropped her disparate impact claim but continued with the two other claims. Id. at ¶¶ 31-41. The same attorney represents both Andreana's collective action and Marcotte's individual action ("Counsel").

         On May 9, 2018, the Court issued two Orders in the instant case. Andreana, ECF Nos. 30-31. In its first Order, the Court conditionally certified the collective action under 29 U.S.C. § 216(b). ECF No. 30 at 8-9. In its second Order, the Court granted in part Defendant's motion to dismiss after finding that it did not have subject matter jurisdiction over the pattern and practice discrimination claim, but keeping the disparate treatment and disparate impact claims intact. ECF No. 31 at 6-10. On May 23, 2018, the Court approved Andreana's collective action notice. ECF No. 32. All additional plaintiffs needed to file their notices to opt in by August 21, 2018. See ECF No. 31 at 9. Marcotte joined the collective action to pursue her 2015 disparate treatment and disparate impact claims on June 4, 2018. ECF No. 36 at ¶ 1.

         On September 14, 2018, Counsel filed Motions to Consolidate in both cases. Andreana, ECF Nos. 56-57; Marcotte, ECF Nos. 24-25. In these motions, Counsel sought to consolidate Marcotte's 2015-2017 disparate treatment claim in her individual action with the instant collective action, while still allowing Marcotte's 2015-2017 retaliation claim to continue in the individual action. See Andreana, ECF No. 56 at 1. On December 17, 2018, the Court denied the Motion in the Andreana case because this consolidation would be claim splitting. ECF No. 63 at 3. On January 2, 2019, Chief Judge Davis denied the Motion in the Marcotte case based on the reasoning of the December 17, 2018 Andreana Order. Marcotte, ECF No. 34 at 4-5.

         On December 31, 2018, Defendants filed a letter with the Court, in which they informed the Court that Marcotte has refused to choose whether to pursue her claims in one action or the other. ECF No. 73. On January 14, 2019, the Court issued an order in the Andreana collective action that directed Marcotte to elect within ten days whether she wished to pursue her disparate treatment claim in the collective and therefore drop the claim from her individual action, or if she wished to drop out of the collective action and pursue her disparate treatment claim in her individual action. Andreana, ECF No. 73. On January 24, 2019, Counsel filed Marcotte's response and indicated that consolidating the claims was not claim splitting. ECF No. 76 at 2. Counsel stated that Marcotte refuses to "make a forced election" and will continue pursuing her disparate treatment claim in both actions. ECF No. 76 at 3. Counsel has filed neither a motion for reconsideration under Federal Rule of Civil Procedure 54(b) nor a notice of appeal under Federal Rule of Appellate Procedure 4(b) with respect to either the Andreana December 17, 2018 Order or the Marcotte January 2, 2019 Order.

         II. LEGAL STANDARDS

         A. Multiple Actions and First-To-File

         Two general tenets of federal civil litigation are relevant. First, a plaintiff generally has "no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant." Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977). Second, the "first-to-file" rule suggests that courts should generally dismiss the subsequent action in favor of the lawsuit that was initially filed. Ellicott Mack Corp. v. Modern Welding Co., Inc., 502 F.2d 178, 180 n.2 (4th Cir. 1974); Byerson v. Equifax Info. Servs., L.L.C,467 F.Supp.2d 627, 635-36 (E.D. Va. 2006). Under the first-to-file rule, the cases "need not be identical if ...


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