King v. McMillan

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-1183

LESPIA KING,

Plaintiff - Appellant,

JENNIFER DONOVAN; MALINDA BLAND; KRISTIN
DARNELL; TAMARA SPEIGHT; ERIN BACHINSKY;
ANGELA LINKOUS,

Intervenors,

versus

GEORGE M. MCMILLAN, Sheriff, Roanoke City
Sheriff’s Office,

Defendant - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:05-cv-00521-sgw)

Argued: March 14, 2007 Decided: May 4, 2007

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Melvin Edward Williams, TERRY N. GRIMES, P.C., Roanoke,
Virginia, for Appellant. Elizabeth Kay Dillon, GUYNN, MEMMER &
DILLON, P.C., Roanoke, Virginia, for Appellee. ON BRIEF: Terry N.
Grimes, Roanoke, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Six women who claim to have been sexually harassed by

Sheriff George McMillan of Roanoke, Virginia, appeal the district

court’s order denying their motion to intervene in a Title VII suit

against McMillan filed by Lespia King. For the reasons explained

below, we affirm.

I.

Lespia King worked as a Deputy in the Roanoke City

Sheriff’s Office from August 2000 until April 2004, when she

resigned because of alleged sexual harassment by Sheriff McMillan.

On October 12, 2004, King filed a charge with the EEOC alleging

constructive discharge as a result of harassment and

discrimination. The EEOC issued a right to sue letter on June 8,

2005, and King filed this action on August 16, 2005. On September

16, 2005, King filed a motion to certify a class action. The

district court denied the motion as untimely because King did not

move to certify the class during the 90-day period following

issuance of the right to sue letter. 42 U.S.C. § 2000e-5(f)(1).

On October 7, 2005, six women -- putative members of the

class that King unsuccessfully proposed to represent -- moved to

intervene in King’s suit as plaintiffs. The proposed intervenors

are: Tamara Speight, a former employee of Prison Health Services

(PHS), an independent contractor of the Roanoke City jail, who

claims that McMillan harassed her until she left her job in October

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2001; Erin Bachinsky, a woman never employed by the Sheriff’s

Office who claims that McMillan harassed her during a job

interview; Kristin Darnell, a former Sheriff’s Office employee who

claims that McMillan harassed her until she resigned in August

2002; Jennifer Donovan, a former Sheriff’s Office employee who

claims that McMillan harassed her until she resigned in October

2002; Angela Linkous, a former PHS employee who asserts that

McMillan harassed her until her resignation in February 2003; and

Malinda Bland, who claims that McMillan harassed her during her one

week of employment by the Sheriff’s Office in August 2004. Like

King, all six of these women allege that McMillan made unwanted

sexual remarks to them, groped them, and inappropriately touched

them.

None of the proposed intervenors exhausted their

administrative remedies by filing charges with the EEOC. The six

argue they should be able to join the suit as plaintiffs because

the prerequisite of filing a timely charge with the EEOC was met by

King, the original plaintiff. When the other requirements for

intervention are satisfied, a number of circuits allow intervenors

in discrimination suits to rely on the original plaintiff’s EEOC

charge in lieu of requiring each to file an individual charge with

the agency. See, e.g., EEOC v. Wilson Metal Casket, Co., 24 F.3d

836, 840 (6th Cir. 1994); Snell v. Suffolk, 782 F.2d 1094, 110 (2d

Cir. 1986); Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1381 (11th

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Cir. 1983); DeMedina v. Reinhardt, 686 F.2d 997, 1012-13 (D.C. Cir.

1982); Crawford v. United States Steel Corp., 660 F.2d 663, 665-66

(5th Cir. 1981); Allen v. Amalgamated Transit Union Local 788, 554

F.2d 876, 882-83 (8th Cir. 1977). While our circuit has long

applied this “single-filing rule” to class actions, see Chisholm v.

U.S. Postal Serv., 665 F.2d 482, 490 n.11 (4th Cir. 1981), we have

never decided whether the rule may be applied to intervenors. Only

the Third Circuit has confined application of the single-filing

rule to class actions. See Whalen v. W.R. Grace & Co., 56 F.3d

504, 507 (3d Cir. 1995).

The district court concluded that it did not have to

reach the question of whether intervenors can rely on the single-

filing rule because it determined that the prerequisites for

applying the rule are not present in this case. First, the

district court concluded that the proposed intervenors’ claims were

not substantially similar to King’s. Second, the court concluded

that King’s EEOC charge did not provide sufficient notice of the

collective nature of her claims. Finally, the court noted that at

the time King filed her EEOC charge, the claims of all proposed

intervenors, except Malinda Bland’s, were time barred. The

district court explained that the single-filing rule cannot be used

to resuscitate stale claims.

King and the proposed intervenors appeal the denial of

the motion to intervene.

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 II.

Under Title VII a civil suit against the respondent named

in an administrative charge may be brought after administrative

proceedings have ended or conciliation attempts have failed. 42

U.S.C. § 2000e-5(f)(1). The requirement to file a charge with the

EEOC serves two purposes: “First, it notifies the charged party of

the asserted violation. Secondly, it brings the charged party

before the EEOC and permits effectuation of the Act’s primary goal,

the securing of voluntary compliance with the law.” Alvarado v.

Board of Trustees, 848 F.2d 457, 458-59 (4th Cir. 1988) (internal

quotation omitted).

The single-filing rule is a judge-made exception to the

requirement of administrative exhaustion. Horton v. Jackson County

Bd. of County Comm’rs, 343 F.3d 897, 899 (7th Cir. 2003). In those

circuits that follow it, the single-filing rule “allows plaintiffs

who have not exhausted the administrative requirement of filing

with the EEOC to join in a lawsuit with other plaintiffs who have

exhausted the requirement, provided that all plaintiffs’ claims are

substantially similar and that the EEOC charge itself gave notice

of the charge’s collective nature.” White v. BFI Waste Servs.,

LLC, 375 F.3d 288, 293 (4th Cir. 2004). Underlying the rule is the

understanding that “[i]t would be wasteful, if not vain, for

numerous employees, all with the same grievance, to have to process

many identical complaints with the EEOC.” Oatis v. Crown

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Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). When the

initial plaintiff files an administrative charge making clear that

her grievance is shared by a group of similarly situated employees,

the rule does not interfere with the purposes of providing notice

and an opportunity for conciliation. Courts applying the rule

explain that nothing is gained by duplicative administrative

filings because “[i]f it was impossible for the EEOC to effectuate

a settlement of the original plaintiffs’ claims, there is no reason

to believe that the EEOC would be successful in settling [later

intervenors’] claims.” Foster v. Gueory, 655 F.2d 1319, 1323 (D.C.

Cir. 1981).

We need not decide whether to join those circuits that

apply the single-filing rule to non-class actions because we

conclude that the rule would not be properly applied in this case.

The district court was correct in concluding that the claims of

five of the six proposed intervenors are time barred. A plaintiff

alleging violation of Title VII in Virginia must file a charge with

the EEOC within 300 days of the alleged violation. Venkatraman v.

REI Sys., 417 F.3d 418, 420 (4th Cir. 2005). On the date that King

filed her EEOC charge, any claims that Donovan, Darnell, Speight,

Bachinsky, or Linkous might have pressed had already expired. The

single-filing rule is not properly used to resurrect statutorily

barred claims. Cf. AMTRAK v. Morgan, 536 U.S. 101, 113 (2002)

(“[D]iscrete discriminatory acts are not actionable if time barred,

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even when they are related to acts alleged in timely filed

charges.”).

This leaves only the claim of Malinda Bland. We agree

with the Seventh Circuit that in most cases where there are only

two complainants, the rationale underlying the single-filing rule

“is attenuated to the point of non-existence.” Horton, 343 F.3d at

900. In a two-complainant case, it is much more difficult to

justify excusing a single intervenor from the normal administrative

exhaustion requirements. Requiring a lone intervenor to file a

timely charge does not impose a substantial burden on either the

EEOC or the employer. Instead, requiring both the original

plaintiff and a later intervenor to file their own charges is

consonant with “the statutory goal of maximum possible reliance

upon voluntary conciliation and administrative resolution of

claims.” EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602

(1981). As a result, we find no error in the district court’s

denial of the motion to intervene as to Bland.

The district court’s order denying the motion to

intervene is therefore

AFFIRMED.

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