United States District Court, E.D. Virginia, Norfolk Division
JOSEPH H. ANDREANA, on behalf of himself and all others similarly situated Plaintiff,
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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
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").
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.
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
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.
Multiple Actions and First-To-File
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 ...