## Facts

- Two tenured biology professors in their mid-60s sued their university employer, alleging age-based employment discrimination and retaliation after they refused early retirement.
- Plaintiffs alleged adverse actions after declining retirement, including relocation from private offices with lab space to storage areas, denial of sabbatical leave, removal of lab assistants, and loss of certain teaching responsibilities.
- Plaintiffs also alleged a broader practice of paying older faculty less than younger faculty and awarding older faculty smaller annual raises.
- Plaintiffs brought claims under the Age Discrimination in Employment Act (ADEA), which incorporates the Fair Labor Standards Act (FLSA) collective-action mechanism in 29 U.S.C. § 216(b).
- Plaintiffs sought “conditional certification” of a collective action, discovery of potential opt-in members’ identities, and court-approved notice to those individuals.

## Issues

1. Whether plaintiffs pursuing an ADEA collective action under FLSA § 216(b) must satisfy Federal Rule of Civil Procedure 23-type prerequisites before the court will authorize broad notice and collective treatment.
2. Whether, on the record presented, the plaintiffs made a sufficient showing to justify conditional certification, discovery of putative members, and court-supervised notice.

## Decision

- The court held that ADEA collective actions under § 216(b) are not exempt from Rule 23-type procedural safeguards when plaintiffs seek court-facilitated notice and aggregate treatment.
- The court recognized it has discretion to authorize notice in ADEA collective actions but concluded that discretion should be exercised only after an adequate showing supporting collective treatment.
- The court denied plaintiffs’ motion for conditional certification, discovery of potential class member identities, and approval of a proposed notice due to an insufficient evidentiary showing.

## Legal Principles

- Section 216(b) governs how individuals become parties (by filing written consents), but it does not supply a complete procedural framework for aggregate litigation in federal court.
- When ADEA plaintiffs seek court-managed notice and collective treatment, courts may require showings analogous to Rule 23 prerequisites, including a sufficiently numerous and cohesive group, common questions, typicality, and adequate representation.
- Judicial authority to supervise notice in ADEA collective actions does not eliminate the need for procedural safeguards that protect fairness to absent individuals and guard against undue burdens on defendants.

## Conclusion

The court required Rule 23-type safeguards as a condition for court-approved notice and collective treatment in an ADEA § 216(b) action and denied conditional certification and notice because the plaintiffs did not adequately substantiate a defined, similarly situated group on the record presented.


Shushan v. Univ. of Colo., 132 F.R.D. 263 (D. Colo. 1990)